End User License Agreement

Last Updated: August 19, 2024

This End User License Agreement (“Agreement”) is entered into between you (“Customer”, “You” or “Your”) and Elementl, Inc. d/b/a Dagster Labs (“Provider,” “We,” “Us,” or “Our”). By accessing or using the cloud service data orchestration platform provided by the Provider (the “Cloud Service”), You agree to be bound by this Agreement. If You do not agree to this Agreement, do not use the Cloud Service.

1. Definitions

• Applicable Laws: the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Us or You.
• Customer Content: Any data, information, or material submitted by You or a User in the course of using the Product, but excludes Feedback.
• Documentation: the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.
• Feedback: suggestions, feedback, or comments about the Cloud Service or related offering.
• Force Majeure Event: an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disaster like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
• High Risk Activity: any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
• Open Source Components: certain “open source” software modules and components of the Software, such as the Dagster Agent.
• Product: the Cloud Service, Software, and Documentation.
• Prohibited Data: (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Laws.
• Reseller: An authorized third party that sells access to the Cloud Service on behalf of the Provider.
• Software: the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
• Usage Data: means data and information about the provision, use, and performance of the Cloud Service and related offerings based on Your or User’s use of the Cloud Service.
• User: any individual who uses the Cloud Service on Your behalf or through Your account.

2. License Grant

During the term of your agreement with the Reseller, You may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for Your internal business purposes and only if You comply with the terms of this Agreement and all Applicable Laws.

We will use reasonable efforts to deliver to You any notices or other materials (such as source code) required under the terms and conditions applicable to such Open Source Components. We will provide a list of Open Source Components for a particular version of any distributed portion of the Software, on Your request. To the extent required by the licenses covering such Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of such licenses require Us to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made.

3. Restrictions

You shall not (and will not allow any anyone else to):

• Reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Cloud Service (except to the extent Applicable Laws prohibit this restriction);
• Provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Cloud Service;
• Remove any proprietary notices or labels;
• Copy, modify, or create derivative works of the Cloud Service;
• Conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Cloud Service;
• Access accounts, information, data, or portions of the Cloud Service to which Customer does not have explicit authorization;
• Use the Cloud Service to develop a competing service or Cloud Service;
• Use the Cloud Service with any High Risk Activities or with activity prohibited by Applicable Laws;
• Submit Prohibited Data to the Product;
• Use the Cloud Service to obtain unauthorized access to anyone else’s networks or equipment; or
• Upload, submit, or otherwise make available to the Product any Customer Content to which You and Users do not have the proper rights.

You may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

You shall not input, upload, transmit, or otherwise provide to or through the Cloud Service any information or materials that contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.

4. Account Responsibility

You are responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. You will immediately notify Us if You suspect or know of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

5. Customer Content; Usage Data; Feedback

You retain all rights to Customer Content. The Provider may use Customer Content to provide the Cloud Service and as otherwise permitted by this Agreement. You grant the Provider a non-exclusive, worldwide, royalty-free license to use, modify, and reproduce Customer Content for the purpose of providing the Cloud Service.

You may, but is not required to, give Us Feedback, in which case You gives Feedback “AS IS”. We may use all Feedback freely without any restriction or obligation. In addition, We may collect and analyze Usage Data, and We may freely use Usage Data to maintain, improve, and enhance Our products and services without restriction or obligation. However, We may only share Usage Data with others if the Usage Data is aggregated and does not identify You or Users.

6. Intellectual Property

The Product, including all intellectual property rights therein, is owned by the Us or Our licensors. This Agreement does not grant You any ownership rights in the Product.

7. Fees and Payment

Any fees for access to the Product purchased through a Reseller are subject to the agreement between You and the Reseller. We are not responsible for the collection or refund of any such fees.

8. Suspension; Term and Termination

If You breach Section 3 (Restrictions) or use the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others, then We may temporarily suspend Your access to the Product with or without notice. However, We will try to inform You before suspending Your account when practical. We will reinstate Your access to the Product only if You resolves the underlying issue.

This Agreement is effective until terminated by either party. You may terminate this Agreement by ceasing all use of the Product. The Provider may terminate this Agreement and your access to the Product immediately if You breach any provision of this Agreement. Upon termination, the license granted herein shall terminate, and You must cease all use of the Product.

9. Disclaimer of Warranties

The Product is provided “as is” and “as available,” without warranty of any kind, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The Provider does not warrant that the Cloud Service will be uninterrupted, error-free, or free of harmful components.

10. Exclusions; Limitation of Liability

Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

The aggregate, cumulative liability of Provider (including its directors, officers, employees, representatives, agents and suppliers) under this Agreement, whether in contract, tort, or any other theory of liability, shall be limited to the fees paid or payable by You to Reseller for the Product during the twelve (12) month period immediately preceding the event giving rise to such claim.

11. Indemnification

You agree to indemnify and hold harmless the Provider, its affiliates, and its respective officers, directors, employees, and agents from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to Customer Content or Your violation of this Agreement.

12. Governing Law; Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to its conflict of law principles.

The parties will bring any legal suit, action, or proceeding about this Agreement in the the courts (whether state, federal, or otherwise) located in San Francisco County, California and each party irrevocably submits to the exclusive jurisdiction of such courts.

13. Force Majeure

Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Your obligations to pay fees to the Reseller.

14. Entire Agreement

This Agreement constitutes the entire agreement between You and the Provider regarding the use of the Product and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.

15. Amendments

The Provider reserves the right to modify this Agreement at any time. The Provider will notify You of any changes by posting the new Agreement on its website. Your continued use of the Product after any such changes constitutes Your acceptance of the new Agreement.