This Master Subscription Agreement (“Agreement”) is entered into by and between Astronomer, Inc. (“Astronomer”) with offices at 231 W. 12th Street, Suite 2E, Cincinnati, Ohio 45202, and the entity or person placing an order for, or otherwise accessing, either the Astronomer Service, or Professional Services related thereto (“Customer”). This Agreement shall include any Order Form(s), Statements of Work, or any attachments, addenda, or exhibits executed by both parties that reference this Agreement. The “Effective Date” of this Agreement is the earlier of: (a) the date Customer accepts these terms, (b) the date Customer is first provided access to the Service or Professional Services, or (c) the effective date of the first Order Form or SOW executed by Customer and Astronomer.
By accepting this Agreement, by executing an Order Form that explicitly incorporates this Agreement by reference, Customer enters into the Agreement and any referenced addenda, schedules, or other agreements, each of which are incorporated into the Agreement and apply to the provision of the applicable Astronomer Service upon your ordering such service.
1. DEFINITIONS
1.1. “Affiliate” - Any entity that Customer, directly or indirectly, controls; an entity that controls Customer; or an entity that is under common control with Customer. For purposes of this provision, “control” means ownership of all or a majority of the outstanding voting shares of the entity.
1.2. “Cloud Environment” - A cloud computing or other storage resource account owned or operated by or for Astronomer or Customer, as the case may be, pursuant to this Agreement.
1.3. “Confidential Information” - All code, inventions, know-how, business, trade secrets, user data, technical and financial information that one party (“Receiving Party”) obtains from the other party (“Disclosing Party”); provided that such information is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limitation of the foregoing, all Customer Data is Confidential information of Customer, and any software, documentation or technical information provided by Astronomer (or its agents) shall be deemed Confidential Information of Astronomer, in each case without any marking or further designation. The terms of this Agreement shall be Confidential Information of both parties.
1.4. “Customer Data” - All data, records, files, information and content uploaded by or on behalf of Customer to the Service.
1.5. “Data Plane” - The portion of a Cloud Environment in which Customer Data is processed as part of the Service.
1.6. “Documentation” - The online documentation and user guides provided by Astronomer in the following link: /docs/.
1.7. “Downloadable Software” - All software elements Astronomer provides to Customer in downloadable form to be run by Customer in Customer-controlled environments during the Subscription Term.
1.8. “Order Form” - An Astronomer standard ordering document referencing this Agreement and executed by both parties, reflecting the Subscription and Professional Services purchased by Customer.
1.9. “Order Form Effective Date” - The earlier to occur of (i) Order Form signed by both parties, and (ii) the date upon which Astronomer first grants Customer access to the Service.
1.10. “Professional Services” - Professional consulting services purchased by Customer pursuant to the applicable Order Form and/or SOW and relating to training and assistance with installation, deployment, or usage of the Service.
1.11. “Service” - Astronomer’s proprietary managed software-as-a-service solution specified in an Order Form, all related Documentation, all Downloadable Software, and any applicable Professional Services.
1.12. “SOW” - A Statement of Work executed by both Astronomer and Customer detailing the scope, cost and other applicable terms of any Professional Services.
1.13. “Subscription” - The Customer’s right to access and use the Service and support and maintenance on a subscription basis, as listed on an executed Order Form.
1.14. “Subscription Term” - The duration of a Subscription as described in an Order Form.
1.15. “Term” - The period commencing as of the Effective Date and ending as set forth in Section 5.2.
1.16. “Users” - The Customer’s employees and contractors which are authorized by Customer to access and use the Service and Professional Services purchased under an Order Form or SOW.
1.17. Additional product-related definitions contained in Exhibit A are not used in this Agreement and may be used in certain Order Forms or SOWs.
2. SERVICES AND SUPPORT
2.1. The Service
Subject to the terms of this Agreement, Astronomer will use commercially reasonable efforts to make the Service available to Customer for the Subscription Term and, if applicable, to provide the Professional Services, in accordance with the applicable SOW. To the extent that Downloadable Software is included in Customer’s Subscription, Astronomer hereby grants Customer a non-exclusive, non-assignable (except to Affiliates) license to copy, install, and, execute such Downloadable Software solely as needed to access and use the Service during the Subscription Term.
2.2. Support
During the term of any Subscription, Astronomer will provide Customer with technical support services for the Service at no additional cost in accordance with Astronomer’s support policy.
2.3. Customer Responsibilities
Customer shall be responsible for obtaining, paying for, maintaining, and securing any equipment, facilities, and/or cloud services needed for Customer to connect to and access the Service, as specified in the applicable Documentation. If, as detailed in the Order Form, a Data Plane is to be hosted in the Customer’s Cloud Environment, then the Customer shall be responsible for providing and separately paying for a Cloud Environment to host the relevant Data Plane. The Customer shall be responsible for providing any required environments in which Downloadable Software (if applicable) is deployed (collectively, “Customer Resources”). Customer shall be solely responsible for securing its own account passwords (including administrative and user passwords) and files related to the Customer Resources.
2.4. Restrictions on Licensed Use
Customer shall comply with Astronomer’s Terms of Service and Acceptable Use Policy.
2.5. Restrictions on Customer Data
Customer Data will not include: any data for which Customer does not have all rights necessary to use and processing as contemplated by the Agreement or that violates applicable law.
2.6. Security
The parties shall comply with the Security Addendum.
2.7. Data Processing Agreement
The parties shall comply with the DPA.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Confidentiality
The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Confidential Information, and (ii) not to use or divulge to any third person any of the Disclosing Party’s Confidential Information, except as strictly necessary to exercise its rights or perform its obligations under this Agreement.
3.2. Permissible and Mandatory Disclosures of Confidential Information
The Disclosing Party agrees the restrictions of Section 3.1 shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any breach of any obligation of confidentiality, or (b) was in its possession or known by it prior to receipt from the Disclosing Party without any breach of any obligation of confidentiality, or (c) was rightfully disclosed to it without restriction and without breach of any obligation of confidentiality by a third party, or (d) was independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information pursuant to a valid and binding order of a court of competent jurisdiction, it may do so without being in breach of Section 3.1 provided that in any such event the Disclosing Party shall notify the Receiving Party as soon as practicable but in any event prior to making any disclosure so that the Disclosing Party may seek confidential treatment of such information. The Receiving Party shall use commercially reasonable efforts to limit its disclosure to the extent required by the applicable order.
3.3. Proprietary Rights; Ownership
3.3.1. Customer Data
Customer shall own and retain all rights, title, and interest in and to the Customer Data and all intellectual property rights related to the foregoing. Astronomer shall not use the Customer Data for any purpose other than as strictly necessary to provide the Service to Customer under this Agreement. All rights not expressly granted in and to the Customer Data are reserved by Customer. Subject to the terms of this Agreement, Customer hereby grants to Astronomer a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Service, including monitoring, improving and enhancing the Service.
3.3.2. The Service
Subject to Customer’s ownership of the Customer Data, except for the limited rights expressly provided under a Subscription, Astronomer shall own and retain all rights, title, and interest in and to the Service, and all improvements, enhancements, or modifications thereto, including without limitation any software, applications, inventions, or other technology developed by Astronomer in connection with providing the Service. Astronomer may use for any purpose any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service.
3.3.3. License to Professional Services Results
Any Professional Services performed by Astronomer under an Order Form or SOW (e.g., providing guidance on configuring the Service) and any results thereof are generally applicable to Astronomer’s business and are part of the Service. Subject to the terms of this Agreement Astronomer hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use such results internally solely in connection with such Customer’s use of the Service during the Subscription. The parties may mutually agree to Order Forms or SOWs with additional terms related to such results.
4. PAYMENT OF FEES
4.1. Fees
Customer will pay Astronomer the applicable fees described in the Order Form for the Service in accordance with the terms therein (the “Fees”). The Fees shall be fixed for the Subscription Term as set forth in an Order Form. If Customer believes that Astronomer has billed Customer incorrectly, Customer will use commercially reasonable efforts to contact Astronomer no later than thirty (30) days after receipt of the applicable invoice in order to receive an adjustment or credit. Inquiries should be directed to Astronomer’s customer support department by emailing support@astronomer.io.
4.2. Payment
Astronomer will invoice Customer for the Fees in accordance with the applicable Order Form. Customer will pay each undisputed invoice within 30 days following the date Customer receives the invoice (“Due Date”). Undisputed invoices not paid by the Due Date are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower provided that Astronomer has first notified Customer in writing that such invoice is overdue and Customer fails to make payment in full of all undisputed amounts within 15 days following receipt of Astronomer’s written notice.
4.3. Taxes
Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on Astronomer’s net income, property, or employees (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder including without limitation all use or access of the Service. If Astronomer has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Astronomer will invoice Customer and Customer will pay that amount unless Customer provides Astronomer with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Astronomer, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Astronomer receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Astronomer’s request, Customer will provide to Astronomer its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the ordered services.
5. TERM AND TERMINATION
5.1. Subscription Term
Subject to earlier termination as provided in Section 5.2, the term of the Subscription shall begin on the Order Form Effective Date, and shall continue until the end of the Subscription Term, unless otherwise terminated in accordance with this Agreement. Except as expressly noted in an Order Form, each Subscription Term will automatically renew for an additional period equal to the initial Subscription Term, unless Customer provides 45 days’ prior, written notice of its intention not to renew. For each renewal Subscription Term, the Annual Fee for each Product and defined reserved capacity listed in the Order Form shall not increase by more than the greater of: a) five percent (5%); or b) the then-current CPI in effect on the Subscription Term start date.
5.2. Termination of the Agreement
5.2.1 If a party is in material breach of this Agreement and such breach continues for a period of thirty (30) days after receipt of written notice describing such breach in reasonable detail, then the non-breaching party may terminate this Agreement by providing written notice to the breaching party of its election to terminate.
5.2.2 This Agreement will be valid as of the Effective Date above, and may be terminated by either party upon 30 days written notice to the other party at any time when there is no Order Form or SOW then in effect.
5.3. Obligations Upon Termination
Upon expiration or termination of this Agreement for any reason, Customer will no longer be able to access the Service. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, proprietary rights, warranty disclaimers, and limitations of liability. If Customer terminates pursuant to Section 5.2.1, then Astronomer will provide a pro-rata refund of Fees paid for the period following the effective date of such termination.
6. WARRANTY AND DISCLAIMER
6.1. Warranty
Astronomer represents and warrants that (a) the Service will operate in substantial conformity with the applicable Documentation; (b) it has the right to grant to Customer all rights granted under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances or other interests of any third party, and it has not previously and will not grant any rights in the Service to any third party that are inconsistent with the rights granted to Customer in this Agreement, (c) the Service does not, to its knowledge, contain any viruses, “trojan horses” or other harmful code, and (d) the Service does not, to its knowledge, contain any copy protection, automatic shut-down, lockout, “time bomb” or similar mechanisms that could interfere with Customer’s exercise of its rights under this Agreement. Without limitation of its obligation to provide support, Astronomer shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions. Notwithstanding the foregoing, Astronomer will not be responsible for a breach of any of the above warranties if and to the extent that such breach is attributable to the use or misuse of Customer Resources.
6.2. DISCLAIMER OF WARRANTIES
OTHER THAN AS PROVIDED IN THIS AGREEMENT, ASTRONOMER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND ASTRONOMER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 3.1 OR 3.2 AND LIABILITY ARISING UNDER SECTION 8.1 (INDEMNIFICATION): (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; AND (B) EACH PARTY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF $100,000 OR THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER TO ASTRONOMER UNDER THE THEN-CURRENT SUBSCRIPTION TERM, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION; APPLICABLE LAW
8.1. Indemnification
At Customer’s election, Astronomer will indemnify, defend and hold harmless Customer and its Affiliates, and their respective officers, directors, representatives and employees against all third party claims, damages, liabilities and costs, including reasonable attorneys’ fees, to the extent such claims arise out of any claim that the Service(or any portion thereof) infringes, misappropriates or violates any copyright, patent, trademark, trade secret or other intellectual property or proprietary right of any third party or violate any applicable law, regulation or rule.
For any claim for which Customer seeks indemnification or defense, Customer shall: (a) provide prompt written notice of the claim and (b) permit Astronomer, through counsel reasonably acceptable to Customer, to defend the claim. Nothing in this Agreement will limit Customer from employing separate counsel (at Customer’s expense) in order to monitor or participate in the defense of any claim. In defending any claim, Astronomer shall not take any position, file any brief, or otherwise take any action that may limit, waive, or affect Customer’s rights, or impose upon Customer any liability, without Customer’s prior written consent. Neither party may settle any Claim without the other party’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
If Astronomer reasonably anticipates that a third party claim may result in significant damages or an injunction prohibiting Astronomer from providing the Service pursuant to this Agreement, Astronomer may, at its discretion (i) procure the legal right to do so, or (ii) modify the Service so as to make them non-infringing without a material reduction of functionality, or if (i) and (ii) are not commercially practicable (iii) terminate the applicable Subscription Term, SOW, or other orders and refund to Customer the pro rata portion of prepaid fees attributable to the unused portions of the affected products and/or services as of the date of such termination.
8.2. Compliance With Applicable Law
Each party shall comply with applicable laws in connection with its performance under this Agreement. Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, or anything related thereto, or any direct product thereof 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. As defined in FAR Section 2.101, the Service and Documentation are “commercial items” and according to DFAR Section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
9. ASSIGNMENT; DISSOLUTION
9.1. Assignment
Either party may assign this Agreement, and all rights and obligations hereunder, as a result of a change in control by reorganization, acquisition, merger, consolidation, operation of law, or otherwise without the consent of the other party. The terms of this Agreement and each Order Form will be binding on such party’s successors and assigns.
9.2. Dissolution; Bankruptcy
The parties intend that all licenses that Astronomer grants Customer under this Agreement are, for purposes of section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property,” as that term is defined in section 101 of the Bankruptcy Code. Nothing in this Agreement limits the Customer’s rights under section 365(n) and Customer is not in this Agreement making an election under section 365(n).
10. MISCELLANEOUS
10.1. Severability; Transferability
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as provided in Section 10.1 above, this Agreement is not assignable, transferable, or sub-licensable by a party except with the other party’s prior written consent.
10.2. Merger Clause; Waiver
This Agreement, including all Order Forms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications to this Agreement or any Order Form must be in a writing signed by both parties. No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
10.3. Attorneys’ Fees; Notice; Choice of Law
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. The parties agree to bring any action under or related to this Agreement exclusively in the courts located in New York County, New York, and hereby consent to the jurisdiction of those courts for such purposes.
10.4. Publicity
Except as provided below, neither party will use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of the other party or any of its Affiliates in any manner without prior written authorization of such use by the other party. Neither party will issue press releases or publicity relating to the other party or this Agreement or reference the other party or its Affiliates in any press release, brochures, advertisements, client lists or other promotional materials without the prior written permission of the other party. Notwithstanding the foregoing, Astronomer may use Customer’s name and logo as part of a list of Astronomer clients, and Customer hereby grants Astronomer a limited, non-transferable, worldwide license to use Customer’s name logo for such purposes, subject to such use restrictions as Customer may provide to Astronomer from time to time.
10.5. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
10.6. Terms, Precedence, Modification
The terms and conditions of this Agreement and the applicable Order Form or SOW are intended to complement each other. To the extent they conflict, the terms and conditions of the Agreement will control over any Order Form or SOW, unless expressly contradicted in the applicable Order Form or SOW. Any modification will apply only to that Order Form or SOW.
From time to time, Astronomer may modify this Agreement. Unless otherwise specified by Astronomer, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Astronomer will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Astronomer Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
This Agreement will not be modified by any terms of any purchase order, shrinkwrap, click through or other online terms or agreement, except as expressly set forth herein.
Section headings have been included in this Agreement for convenience only and are not to be considered part of, or to be used in interpreting this Agreement.
EXHIBIT A- PRODUCT DEFINITIONS
“Reserved Capacity” - The committed consumption for each month of the contract period, offered at a discount for such commitment. Consumption in excess of Reserved Capacity is charged at the On-Demand Rate at the end of each month. Customer shall only have the ability to negotiate a lower number of Monthly Task Runs at the commencement of each renewal term.
“Task Runs” are discrete executions of a Task, the definition of a unit of work within a pipeline; it is represented as a node in the pipeline graph. Task Runs, as measured, include only successful executions and exclude unexecuted tasks.
