End User License Agreement
(Last Updated: October 20, 2022)
THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE SOFTWARE AND SERVICES (COLLECTIVELY, THE “SOLUTION”) PROVIDED BY H2O.AI, INC. (“H2O”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF H2O’S SOFTWARE OR SERVICES, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ON THE DATE IT IS AGREED TO BY CUSTOMER (SUCH AS BY EXECUTION OF AN ORDER DOCUMENT, AS DEFINED IN SECTION 1) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN H2O AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SOLUTION, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
Subject to the terms of this Agreement, H2O hereby grants Customer a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the Solution only for Customer’s internal use for the purpose for which it is provided and only in accordance with any H2O-provided documentation (including as provided electronically).
The Solution may include access to H2O’s software-as-a-service solution (“Hosted Solution”), software (“Software”), and/or related services, as agreed to by the parties in an Order Document. An “Order Document” is a schedule, statement of work and/or other ordering document agreed to by the parties (and may include an online purchase process made available by H2O).
If the Solution includes the provision of any Software, Customer will only use it in object code form. The Solution may be accessed by the number of users agreed to by H2O and Customer during the purchase process (e.g., on an order form). Such users will be specific individuals named by Customer during the purchase process, or subsequently, in writing (email is sufficient). Once such named individuals are selected by Customer, they may be changed only on written notice to H2O (email is sufficient). The named individuals will not allow any other Customer personnel to use their Solution log-in credentials (passwords, etc.). In the event Customer purchases additional modules or add-ons to Solution (including, without limitation, any features or functions that H2O charges other customers for), they will be deemed “Solution” and, therefore, subject to this Agreement (unless H2O provides them pursuant to different terms and conditions). With respect to any Customer proposed modifications, derivatives, enhancements or improvements to the Solution (“Feedback”), Customer hereby grants H2O a perpetual, irrevocable, royalty-free, fully paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise fully exploit such Feedback for any purposes. All Feedback is provided by Customer “AS IS.” Certain portions of Software may be subject to the publicly available Apache 2.0 license (such portions will be identified upon Customer’s request). In the event of a conflict between this Agreement and the Apache license, the Apache license will control.
Except as expressly and unambiguously permitted by this Agreement, Customer shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, resell or distribute the Solution; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Solution (except the foregoing will not apply to the extent prohibited by applicable local law); (iii) rent, lease, or use the Solution for timesharing or service bureau purposes, or otherwise use the Solution on behalf of any third party; (iv) use the Solution to develop any other product or services whether delivered internally or as an external service offering or (v) use the Solution for performing comparisons or other “benchmarking” activities, either alone or in connection with any other Solution (and Customer will not publish or disclose any such performance information or comparisons). Customer shall maintain and not remove or obscure any proprietary notices on or in the Solution. As between the parties, title, ownership rights, and intellectual property rights in and to the Solution, and any copies or portions thereof, shall remain in H2O or (as applicable) its suppliers/licensors. Customer understands that H2O may modify or discontinue offering the Solution at any time (provided that, if Customer has purchased a term-based license, such discontinuance will only take place at the end of the then-current term). The Solution is protected by the copyright laws and treaties. This Agreement does not give Customer any rights not expressly granted herein. On at least five (5) days’ prior written notice, Customer may (itself or through a third party designated by H2O) audit and inspect Customer’s books, records, systems and facilities as it deems appropriate to verify Customer’s compliance with this Agreement. Audits will not be conducted more than once each year (but more times are allowed if H2O reasonably suspects a breach). Customer will provide reasonable cooperation with any audit.
All information regarding the Solution, or otherwise disclosed by H2O, that is identified as confidential, or that Customer should reasonably understand to be confidential, is H2O’s “Confidential Information.” Customer will hold all Confidential Information in confidence and not disclose it to any third party, unless otherwise specifically approved by H2O in writing. Customer will only use the Confidential Information for the purposes of its relationship with H2O hereunder, including as necessary to use the Solution for the purposes for which it is provided. This Section 3 will not apply to information that is or becomes generally available to the public without the fault of Customer. On H2O’s request at any time, Customer will promptly return to H2O (or, at H2O’s request, destroy) all Confidential Information. If requested by H2O, Customer will provide H2O with written certification that it has complied with this Section.
4. SUPPORT AND UPGRADES.
During the term of this Agreement H2O will provide Customer with Solution support according to H2O’s general support practices and procedures. Customer acknowledges that the Solution contains features that allow H2O to remotely and automatically identify, track and analyze certain aspects of use and performance of Solution and/or the systems on which it is installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith). H2O’s support terms are outlined in our H2O Customer Support and SLA Policy (located at https://h2o.ai/legal/sla-customer-support-policy/).
To the extent the Solution is procured via a reseller – and Customer pays such reseller for the Solution – Customer will not owe fees directly to H2O hereunder. With respect to any other procurement of the Solution, Customer shall pay H2O (or its applicable authorized reseller) the fees (if any) for the Solution as agreed to by the parties in writing at the time of purchase. Customer shall also pay all sales, use, withholding tax, value-added and other taxes, tariffs and duties of any type assessed against H2O (except for taxes on H2O’s income). All fees are payable within thirty (30) days from the date of invoice, are non-refundable and payable in U.S. dollars.
If Customer provides H2O with credit card information for payment, (i) Customer acknowledges that an invoice may not be sent, (ii) Customer authorizes H2O to charge the credit card for the Solution and (iii) Customer will ensure that the credit card number (and all information provided to H2O for processing the card) will remain updated and accurate.
If Customer uses ‘cloud credits’ (or similar credits authorized by H2O for use hereunder) for payment of subscription fees, Customer will authorize the cloud provider to pay H2O the full value of the subscription fee (and Customer is responsible for ensuring such payment is made). If the order is a multi-year order, Customer is responsible to pay the full value for all years regardless of payment method (i.e., ‘cloud credits’ or monetary payment). For example, in a three-year deal, Customer may opt to use ’cloud credits’ for Year 1 but pay by U.S. Dollars directly to H2O for Year 2 and Year 3 (subject to the payment terms above).
Late fees will be subject to a finance charge of the lesser of (i) 1.5% per thirty (30) day period and (ii) the greatest amount allowed by applicable law. In addition, Customer will promptly reimburse H2O for all costs of collection (including attorneys’ fees).
Customer shall indemnify and hold harmless H2O from any claims, damages, losses, penalties, fines, liabilities, costs and fees (including reasonable attorney fees) arising from Customer’s use of the Solution as well as from Customer’s negligence, willful misconduct or failure to comply with any term of this Agreement.
7. LIMITED WARRANTY.
H2O warrants to Customer that the Solution will conform materially with the Documentation. Customer acknowledges that H2O does not otherwise warrant that the Solution is free of errors or defects or that use will be uninterrupted. In the event of a breach of this Section, Customer’s sole remedy, and H2O’s exclusive liability, shall be for H2O to use commercially reasonable efforts to correct any such defect(s); provided that, Customer specifically notifies H2O in writing of the defect(s) within thirty (30) days from the date Customer first experiences the defect. Such corrections will be in accordance with H2O’s standard practices (such as bug fix queues and release cycles) that it provides to its other general Customers. This Section 7 will not apply if the Solution is provided on a trial, evaluation, or otherwise free basis (“Evaluation Basis”).
8. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, H2O AND ITS SUPPLIERS PROVIDE THE SOLUTION “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER. NOTWITHSTANDING ANY OF THE FOREGOING (INCLUDING SECTION 7) – NO WARRANTIES OF ANY KIND ARE MADE WITH RESPECT TO THE SOLUTION IF IT IS PROVIDED ON AN EVALUATION BASIS.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL H2O OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON IN CONNECTION WITH THE SOLUTION OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, (II) ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (BUT IF NO FEES HAVE BEEN PAID, SUCH AS IF THE SOLUTION IS PROVIDED ON AN EVALUATION BASIS, THE DAMAGES CAP WILL BE US$1,000.00), (III) THE COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES OR (IV) MATTERS BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF H2O SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
10. TERM AND TERMINATION.
This Agreement is effective as of the Effective Date and, unless otherwise agreed to by the parties in writing, will have the initial subscription term of one (1) year. Thereafter, it will automatically renew for successive renewal subscription terms of equal length to its initial subscription term, unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current subscription term. The initial subscription term and all renewals are referred to collectively as the “Subscription Term.” Notwithstanding the foregoing, if the Solution is provided on an Evaluation Basis, it will, unless otherwise agreed in writing, have a term of thirty (30) days. If provided on an Evaluation Basis either party may terminate this Agreement at any time, for any or no reason, on two (2) days’ email notice. In addition, either party may terminate this Agreement on written notice if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice (ten (10) days in the case of non-payment or in the event Customer breaches any license or use restrictions) provided that, the breach notice must provide sufficient detail regarding the breach and expressly state the intent to terminate if not cured; (b) ceases operation without a successor or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within ninety (90) days thereafter). In addition, H2O may suspend access to the Solution, with or without notice, if Customer is more than ten (10) days late with any payment hereunder. With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer is sufficient hereunder. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Customer shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Solution, and shall, if requested by H2O, so certify to H2O in writing that such actions have occurred. Sections 2 and 4 through 15, and all accrued rights to payment, shall survive termination of this Agreement.
11. GOVERNMENT USE.
If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Solution is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Solution is “commercial computer Solution” and “commercial computer Solution documentation.” In accordance with such provisions, any use of the Solution by the Government shall be governed solely by the terms of this Agreement.
12. EXPORT CONTROLS.
Customer shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Customer shall not export, or allow the export or re-export of the Solution in violation of any such restrictions, laws or regulations. By installing or using the Solution, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country.
Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to Customer, the address listed by Customer during the Solution registration process (or as otherwise provided by Customer) and (ii) if to H2O: H2O.ai, Inc., 2307 Leghorn Street, Mountain View, CA 94043, Attn: Contract Administration (or at such other address as may be given by H2O at any time) and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to H2O (such as for breach) must also be provided in email to: firstname.lastname@example.org (subject heading: Attn: Legal Notice) (but notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in the preceding sentence). Notwithstanding the foregoing, an electronic notice to Customer (such as via email) is sufficient to the extent related to breach or termination.
14. LOGO USAGE.
During the term of this Agreement and for a reasonable wind-down period thereafter, H2O may use Customer’s name and logo on its website and in marketing materials as part of a general list of customers.
This Agreement represents the complete agreement concerning the Solution between the parties, to the exclusion of all other terms and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually-signed agreement between H2O and Customer (not including any Customer purchase order or similar document) covering Customer’s purchase of a license to use the Solution, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. Any additional terms or conditions contained in any Customer purchase order or other ordering document (such as a link to Customer’s online terms and conditions) will not apply – even if the document is accepted or performed on by H2O. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of H2O to act with respect to a breach of this Agreement by Customer or others does not constitute a waiver and shall not limit H2O’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without H2O’s consent and any action or conduct in violation of the foregoing shall be void and without effect. H2O expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
This Agreement is subject to the processes outlined in H2O’s Data Processing Agreement (located at https://h2o.ai/legal/dpa/).
This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without regard to the Uniform Computer Information Transactions Act. Without limiting Company’s right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing of a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in San Francisco, California under the Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”); the decision of the arbitrator will be enforceable in any court. The JAMS Streamlined Arbitration Rules & Procedures will be used if available. Subject to the foregoing, all disputes will be subject to the sole and exclusive jurisdiction of, and venue in, the state and federal courts located in San Francisco, California.