Last Updated: July 11, 2020
These POV Standard Terms (these “POV Terms”) are entered into pursuant to the POV Order referencing these POV Terms (the “POV Order”) between the Customer listed in such the POV Order (“Customer”) and Snorkel AI, Inc. (“Snorkel AI”) as of the effective date of the POV Order. Each of Snorkel AI and Customer are a “Party” and, collectively, are the “Parties”. These POV Terms govern Snorkel AI’s provision of and Customer’s access and use of Snorkel Flow (as defined below) under the POV Order.
- Definitions. The following terms, when used in these POV Terms will have the following meanings:
- “Agreement” means the POV Order together with these POV Terms.
- “Confidential Information” means any information of a confidential or non-public nature disclosed by one Party as a disclosing Party to the other Party as a receiving Party that is either designated as confidential or proprietary at the time of disclosure or should be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.
- “Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Snorkel AI to Customer describing the intended operation of Snorkel Flow.
- “Term” means the term of the Term set forth in the POV Order.
- “Snorkel AI Materials” means Snorkel Flow, Documentation, and any other materials or information (including Snorkel AI’s Confidential Information) delivered or made available by Snorkel AI under the Agreement.
- “Snorkel Flow” means the Snorkel AI software identified on the POV Order to be made available by Snorkel AI to Customer on a software-as-a-service basis as hosted by Snorkel AI, including all fixes, updates and upgrades to the same made available to Customer.
- “Use Limitations” means any use limitations or restrictions with respect to Customer’s use of Snorkel Flow set forth in the POV Order.
- License; Access and Use
- License to Snorkel Flow. Subject to the terms and conditions of the Agreement, Snorkel AI hereby grants to Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable right to access and use Snorkel Flow solely for Customer’s internal business purposes in connection with Customer’s evaluation and in accordance with the Agreement, any Documentation, and any Use Limitations.
- Documentation. Subject to the terms and conditions of the Agreement, Snorkel AI hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the applicable Snorkel Flow. Customer will include on any permitted copies it makes of Snorkel Flow and Documentation the copyright notices or proprietary legends contained within the same.
- Customer Limitations. The rights granted herein are subject to the following restrictions. Customer will not directly or indirectly, and shall not permit or assist any third party to: (a) reverse engineer, decompile, disassemble, translate, modify, create derivative works of Snorkel AI Materials; (b) create, derive, access, inspect, export. or derive data or datasets in Snorkel Flow except as permitted by the normal function of Snorkel Flow as made available hereunder or the source code to any software composing Snorkel Flow; (c) copy or reproduce the Snorkel AI Materials, except to the extent necessary to exercise the licensed use of the same hereunder; (d) attempt to probe, scan or test the vulnerability of Snorkel Flow, breach the security or authentication measures of Snorkel Flow without proper authorization or willfully render any part of Snorkel Flow unusable; (e) use or access Snorkel Flow to develop a product or service that is competitive with Snorkel Flow or engage in competitive analysis or benchmarking; (f) transfer, distribute, sell, resell, lease, license, sublicense, operate as a service for or on behalf of others, or otherwise assign any Snorkel AI Materials or otherwise offer access to the Snorkel AI Materials to a third party; (g) circumvent or otherwise interfere with any authentication or security measures of Snorkel Flow or otherwise interfere with or disrupt the integrity or performance of Snorkel Flow; (h) export any Snorkel AI Materials or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; (i) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from Snorkel Flow; or (j) otherwise use any Snorkel AI Materials except as expressly permitted hereunder and in the POV Order. Customer acknowledges that Snorkel AI may, but is under no obligation to monitor Customer’s use of any Snorkel Flow.
- Fees Unless otherwise set forth in the POV Order, Customer will pay Snorkel AI the fees set forth in the POV Order immediately upon execution of the POV Order. Except as otherwise specified \in the POV Order: (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
- Proprietary Rights and Confidentiality
- Proprietary Rights. As between the Parties, Snorkel AI exclusively owns all right, title and interest in and to the Snorkel AI Materials and Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information, including Customer Data (as defined below). Snorkel AI may, at any time and in its sole discretion, replace, modify, alter, improve, enhance, or change any of Snorkel AI’s products, services, or technologies. Except as expressly granted in the Agreement, Snorkel AI does not grant to Customer any license or rights (by implication, estoppel, or otherwise) in the Snorkel AI Materials. All other rights are expressly reserved by Snorkel AI. Notwithstanding anything herein to the contrary, all rights in and to Snorkel AI Materials and Documentation are licensed and not sold or transferred. Customer will include on any copies it makes of Snorkel AI Materials and Documentation any copyright notices or proprietary legends contained within the same.
- Feedback. Customer may from time to time provide Snorkel AI with suggestions or comments for enhancements or improvements, new features or functionality or other feedback with respect to Snorkel AI’s business, products, or services (“Feedback”). Snorkel AI will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
- Confidentiality. Each Party agrees that it will use the Confidential Information of the other Party solely to perform its obligations and exercise its rights under the Agreement and it will not disclose, or permit to be disclosed, the same, except as otherwise permitted hereunder. However, either Party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives (collectively, “Representatives”) who have a need to know and are legally bound to keep such information confidential by confidentiality obligations with respect to the Confidential Information of the other Party consistent with those of the Agreement (provided that the Party disclosing the Confidential Information to its Representatives shall be responsible for any actions of its Representatives); and as required by law (in which case the receiving Party will provide the disclosing Party with prior written notification thereof, will provide the disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). The obligations of confidentiality in this Section 4.3 shall not apply to information that: (a) is or becomes generally known or publicly available through no fault of receiving Party; (b) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (c) was properly disclosed to the receiving Party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees to exercise due care in protecting the Confidential Information of the other Party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the licenses contained herein, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the Agreement. Notwithstanding anything to the contrary herein, nothing herein limits or restricts Snorkel AI’s right or ability to use data regarding the performance, availability, usage, integrity and security of Snorkel AI Materials.
- Customer Data. Any data submitted by Customer to Snorkel Flow for the purposes of modeling, training and development of machine learning applications using Snorkel Flow and the machine learning models, transformed copies, data labels resulting from the processing of such data by on Snorkel Flow and provided to Customer shall be deemed “Customer Data.” For clarity, Customer Data does not include algorithms, artifacts, models, objects, or software that are part of Snorkel Flow or used to generate any output from Snorkel Flow or otherwise delivered as part of Snorkel Flow. As between Snorkel AI and Customer, Customer Data is Customer’s Confidential Information and Customer retains all rights, title, and interest in and to the Customer Data. Snorkel AI will delete and erase any Customer Data from Snorkel Flow within a commercially reasonable time following Customer’s request therefor. Customer acknowledges and agrees that Snorkel AI is under no obligation to keep, store, maintain, or make available to Customer any Customer Data that has been processed by Snorkel Flow. Customer agrees that Snorkel AI may use Customer Data as necessary to make available Snorkel Flow and perform its obligations hereunder. Customer agrees that Snorkel AI may use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any aggregated non-personally identifiable information related to any usage of Snorkel Flow to operate and improve Snorkel AI’s products and services.
- No Warranties. CUSTOMER ACKNOWLEDGES AND AGREES THAT SNORKEL AI’S SOFTWARE IS BEING PROVIDED ON AN EVALUATION BASIS ONLY AND THAT THE SNORKEL AI MATERIALS ARE BEING LICENSED AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SNORKEL AI DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ORTHERWISE INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSES. CUSTOMER ACKNOWLEDGES THAT SNORKEL AI REGULARLY ERASES FROM ITS SYSTEMS, WITHOUT BACKUPS, CUSTOMER DATA FOR WHICH PROCESSING HAS BEEN COMPLETED. SNORKEL AI DOES NOT WARRANT THAT SNORKEL FLOW WILL BE ERROR-FREE OR THAT IT WILL WORK WITHOUT INTERRUPTION. CUSTOMER AGREES THAT SNORKEL AI WILL NOT BE RESPONSIBLE FOR ANY LOSS OF CUSTOMER DATA OR ANY FAILURE TO MAINTAIN, STORE, OR BACKUP ANY CUSTOMER DATA.
- Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2 OR A PARTY’S BREACH OF THE CONFIDENTIALITY RESTRICTIONS HEREUNDER, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THE AGREEMENT FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE AGREEMENT.
- Term and Termination. The Agreement will commence on the effective date of the POV Order and continue for the Term unless otherwise terminated as set forth herein. Each Party may terminate the Agreement upon written notice in the event the other Party commits any material breach of the Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach. Upon termination of the Agreement: (a) all licenses and other rights and obligations will immediately terminate except that Sections 4 through 9 will survive indefinitely; and (b) Customer will, barring a separate definitive customer agreement with respect to Snorkel Flow, immediately (i) cease all use of the Snorkel AI Materials, (ii) promptly erase all copies of the Snorkel AI Materials in Customer’s possession, and (iii) certify in writing that it has complied with the foregoing (i) and (ii).
- Compliance with Laws. Customer warrants that its use of the Snorkel AI Materials will comply in all respects with all applicable laws in connection with the Agreement, including without limitation the U.S. Export Administration Regulations and sanctions regulations administered by the U.S. Treasury Department.
- Miscellaneous. The Agreement comprises the entire agreement between Customer and Snorkel AI with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). Notwithstanding the foregoing, in the event that Customer and Snorkel AI are parties to more than one order form referencing these POV Terms, each such order form together with these POV Terms shall be a separate agreement and the entering into of the Agreement will not supersede or terminate any such separate agreement unless explicitly contemplated by the POV Order. In the event of a conflict between the terms and conditions of this POV Order and the POV Terms, the POV Terms control unless, and solely to the extent, the conflicting terms in the POV Order expressly identifies the applicable provision of these POV Terms. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations, other than any obligations to make payments hereunder, due to causes beyond its reasonable control, including earthquake, flood, pandemic, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. Snorkel AI Materials shall constitute “commercial” computer software. Government technical data and software rights related to the Snorkel AI Materials include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Snorkel AI to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. Customer shall not assign, sublicense, or otherwise transfer, by agreement or operation of law, the rights or licenses granted to it hereunder without the prior written consent of Snorkel AI, which consent shall not unreasonably be withheld, and all assignments in violation of this prohibition shall be null and void. The Agreement is the entire agreement between the Parties relating to the subject matter hereof and may only be modified in a writing signed by both Parties. The Agreement shall be governed by the laws of the State of California without reference to conflicts of law principles. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. In any dispute arising out of the Agreement, Snorkel AI and Customer each consent to the jurisdiction of both the state and federal courts of Santa Clara County, California and agree to bring any actions arising out of the Agreement in such courts. If any provision or clause of the Agreement is held unenforceable, the remainder of the Agreement will continue in full force and effect. Nothing contained herein shall be construed so as to create a joint venture, partnership, or agency between the Parties. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Parties must be sent to the respective address set forth in the in the POV Order, or such other address designated pursuant to this Section.