Terms and Conditions

Capital One: Slingshot Software Service Agreement

Last Updated: September 18, 2023

This Slingshot Software Service Agreement (this “Agreement”) provides the terms and conditions governing your access and use of proprietary software service referred to as Slingshot (“Software Service”) offered by Capital One Software, LLC (“Capital One”) through the marketplace offered by Snowflake (the “Marketplace”). By clicking to or otherwise indicating consent to or accessing or using the Software Service, you agree on behalf of your organization (“Customer”) to be bound by and comply with this Agreement, and you represent and warrant that you have the authority to bind Customer to this Agreement. Capital One may update this Agreement from time to time by notifying Customer of such updates by any reasonable means, including by posting a revised Agreement through the Marketplace. Customer acknowledges that (i) the free Trial Period is up to 90 days, not unlimited in duration, (ii) Capital One may revoke the Evaluation License at any time during the Trial Period for any reason, and (iii) Customer must purchase a subscription to the Software Service for continued access to the Software Service after the Evaluation License has been revoked.

DEFINITIONS. The definitions in the preamble above and in Exhibit A apply to this Agreement.
EVALUATION LICENSE. Capital One offers Customer an opportunity to preview the Software Service for 90 days following the Effective Date at no charge (“Trial Period”). Subject to the terms and conditions of this Agreement, including Sections 3(d), 3(e), and 3(f), Capital One grants to Customer a limited, revocable, non-exclusive, non-transferable (except as permitted under Section 14(e)), non-sublicensable license to access and use the Software Service, the Documentation, the app related to the Software Service, and any other technology and materials provided or made available by Capital One to Customer as part of any of the Services (collectively, the “Licensed Materials”) solely in the United States during the Trial Period (“Evaluation License”). Notwithstanding the foregoing, Customer acknowledges that (i) Capital One has no obligation to provide any Support Service, Onboarding Service, or Customer Success Service under the Evaluation License, (ii) even if any Support Service, Onboarding Service or Customer Success Service is made available to Customer under the Evaluation License, the Support Service, Onboarding Service or Customer Success Service are provided “AS IS” without any representations or warranties and without any indemnification obligations of Capital One, and Capital One’s obligations under Sections 5(a)-(c) and Exhibits C and D shall not apply, and (iii) the Trial Period is up to 90 days even if the Marketplace refers to the Evaluation License to be “unlimited”. Capital One may revoke the Evaluation License at any time for any reason. At the end of the Trial Period, Customer will no longer have any license to access and use the Software Service, unless Customer purchases a subscription to the Software Service.
SUBSCRIPTION
1. Ordering Process. If Customer desires to purchase a subscription to the Software Service, Customer will place a purchase order in the form attached hereto as Exhibit B (“PO”) to Capital One using the contact information provided through the Marketplace. Capital One may, but is not obligated, to accept any PO from Customer. If Capital One accepts the PO, then this Agreement will be made a part of, and will be incorporated by reference into, the PO.
2. License; Authorized Users. Subject to the terms and conditions of this Agreement and any additional terms and conditions referenced in the PO, including payment of applicable fees, Capital One grants to Customer a limited, revocable, non-exclusive, non-transferable (except as permitted under Section 14(e)), non-sublicensable license to access and use the Licensed Materials solely in the Territory during the Term. The Licensed Materials (i) are only for internal business or commercial (and not personal, family, or household) use, and (ii) may be accessed and used by Customer’s employees and contractors based in the Territory whom Customer has expressly authorized to use the Licensed Materials on Customer’s behalf (collectively, “Authorized Users”). Customer is responsible for its Authorized Users’ compliance with this Agreement. Capital One reserves all rights related to the Licensed Materials, other than those expressly granted to Customer under Section 3(b).
3. Affiliates. With prior written consent of Capital One, the Licensed Materials may be accessed and used by Customer’s Affiliates and their Authorized Users in the Territory as described in Section 3(b), provided that: (i) Customer’s Affiliates agree to be bound by the terms and conditions in this Agreement, including Section 3(d) and 3(e); (ii) Customer remains primarily liable for all obligations hereunder, including payment obligations, arising in connection with the Affiliates’ access and use of the Licensed Materials; and (iii) Customer agrees to be liable for all acts and omissions of such Affiliates as if such acts and omissions were performed by Customer.
4. Restrictions. Customer will not, directly or indirectly, or allow any third parties to: (i) copy the Licensed Materials in any manner or for any purpose; (ii) access or use the Licensed Materials for any purpose not expressly granted in Section 3(b) above; (iii) resell, distribute, publicly display, publicly perform, transfer, lease, loan or make available to third parties the Licensed Materials, including for use by others in any time-sharing, service bureau or similar arrangement; (iv) disassemble, extract, reverse engineer or decompile the Licensed Materials, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Licensed Materials or use the Licensed Materials to develop any competing software or service; (v) modify, translate, adapt, or create derivative works from the Licensed Materials; (vi) circumvent, disable or otherwise interfere with security-related features of the Licensed Materials; (vii) use the Licensed Materials to engage in an illegal activity; (viii) input, store, or transmit any content that is infringing, defamatory, libelous or violate any rights of a third party through the Licensed Materials; or (ix) input, store, or transmit any Malicious Code through the Software Service. Customer will not remove, obscure, or alter any copyright, trademark, or other proprietary notices which may be affixed to or contained within the Licensed Materials.
5. User Account. Customer will ensure that each credential issued to an Authorized User to access the Software Service will be used by that individual only. Customer is responsible for maintaining the confidentiality of the credentials. Customer is responsible for all activities under Customer’s account and the credentials issued to Authorized Users. In the event that Customer learns that credentials have been compromised, Customer will immediately notify Capital One. Capital One will not be responsible or liable for any loss Customer or any third party incurs as a result of someone else using Customer’s account, credentials, whether or not Customer knows about it, except to the extent that such responsibility or liability directly results from Capital One’s negligence or willful misconduct.
6. Snowflake Platform. This Agreement is between Customer and Capital One, not Snowflake, and as between Capital One and Snowflake, Capital One is solely responsible and liable for the Services and obligations under this Agreement, including any Support Service (if applicable). However, Customer acknowledges that the Software Service relies upon or adds to the functionalities of the Snowflake Platform. Therefore, Customer hereby agrees to provide limited access to and authorizes Capital One to use Customer’s Snowflake Platform environment solely to the extent necessary to provide the Software Service. It is the Customer’s responsibility to purchase and maintain throughout the entire Term a license to or right to use the Snowflake Platform, which is necessary for the Software Service to be accessed and/or function as intended. If access to the Snowflake Platform is terminated for any reason, Capital One will be unable to provide the Software Service, but Customer will not be excused from its obligation to purchase and pay for the Services for the remainder of the Term if Customer has purchased a subscription to the Software Service. If Customer removes Capital One’s permitted access to Customer’s Snowflake Platform environment, including as a result of Customer no longer having access to the Snowflake Platform, as described above during the Term of the applicable PO, Customer is deemed to have terminated the PO without cause under Section 13(c) and Customer is subject to the cancellation fee as described in Section 8(f). If access to the Marketplace is discontinued for any reason during the Evaluation License, Capital One may terminate the Evaluation License. Customer acknowledges that Capital One is not responsible or liable for Customer’s relationship with Snowflake, Snowflake’s provision of the Snowflake Platform, or security of Customer Data hosted on the Snowflake Platform. Customer agrees not to use the Software Service in a manner that would violate the terms of use or any other agreement with Snowflake.
CUSTOMER DATA.
1. Customer Data. As between the Parties, Customer retains ownership in the data, information or material that Customer submits to the Snowflake Platform or provides to Capital One for purposes of receiving the Services (“Customer Data”), including a subset of the Customer Data which Customer submits to Capital One in the course of using the Services (“Software Usage Data”). For the avoidance of doubt, Customer Data to which Capital One does not require access and Customer does not submit to Capital One for purposes of providing the Services to Customer, shall not be considered Software Usage Data. Customer hereby grants Capital One a non-exclusive, non-transferable (except as permitted under Section 14(e)), fully-paid, royalty-free, non-sublicensable (except to subcontractors) license to copy and use the Software Usage Data for purposes of providing and improving the Services. Capital One will not modify the Software Usage Data or disclose the Software Usage Data to any third party, except as necessary to provide the Services to Customer, improve the Services, offer other products and services of Capital One, or as otherwise disclosed in the Capital One Privacy Policy; provided however, during and after the Term, Capital One may also retain and use or have used on its behalf, any Benchmark Data, and Capital One may disclose the Benchmark Data to third parties, provided any Benchmark Data disclosed to a third party will be anonymized and will not include Confidential Information of Customer. Customer, not Capital One, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use of all Customer Data and for obtaining all consents and approvals necessary to provide the Software Usage Data to Capital One, including any consents required from Snowflake, and Capital One shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Software Usage Data to the extent such data is available from Snowflake.
2. Personal Information. Capital One does not require any consumer Personal Information from Customer, other than personal information about Customer’s personnel who use the Snowflake Platform or the Services, in order to provide the Services to Customer or as provided in the Capital One Privacy Policy, and Customer will not provide such consumer Personal Information, “Protected Health Information” as defined in 45 CFR 160.103, or Customer Data that Capital One does not require to Capital One. When providing Software Usage Data to Capital One, other than those that Capital One requires as stated in this Agreement and the Capital One Privacy Policy, it is Customer’s responsibility to remove or deidentify, in compliance with applicable laws, all personal data, information and material included in Software Usage Data prior to providing them to Capital One. To the furthest extent possible under applicable law, Customer hereby assumes any and all responsibility and liability associated with Customer’s inadvertent disclosure of such data to Capital One.
3. Privacy Policy. Each Party shall abide by all local, state, national and foreign laws, treaties and regulations applicable to such Party in connection with the Services, including those related to data privacy and data security. Customer understands and acknowledges that, in the context of providing the Services, Capital One may collect, use, and disclose Personal Information regarding Authorized Users as described in the Capital One Privacy Policy.
4. Data Security. Capital One will, consistent with industry standard practices, implement and maintain appropriate technical, administrative, and physical measures designed to protect the security of Software Usage Data, including reasonable measures designed to protect Software Usage Data from unauthorized access, modification, loss or disclosure. Capital One will perform penetration testing or other appropriate security testing and security audits on a regular basis.
SERVICES.
1. Software Service. Capital One will use commercially reasonable efforts to provide the Software Service to Customer according to the terms and conditions of this Agreement and the Documentation and in accordance with the Service Level Agreement provided in Exhibit D, provided that Customer is current in its payment obligations to Capital One under this Agreement that are applicable to the Software Service and is otherwise not in default under this Agreement. Capital One reserves the right to modify the Software Service to improve its performance, be competitive, comply with applicable laws and regulations, and for other reasons in Capital One’s sole discretion, provided that Capital One will not remove any material features and functionalities of the Software Service without providing a substitute.
2. Support and Maintenance Service. Capital One will use commercially reasonable efforts to provide Customer with support and maintenance for the Software Service as described in Exhibit C (collectively, “Support Service”), provided Customer is otherwise not in default under this Agreement, including its payment obligations to Capital One.
3. Onboarding Service and Customer Success Service. Upon Customer’s request, Capital One may, but is not obligated to, offer assistance with (i) initial set-up, configuration, and/or integration necessary for the onboarding of the Software Service (collectively, “Onboarding Service”) and (ii) ongoing review, assessment, planning, and training related to use of the Software Service during the Term (collectively, “Customer Success Service”), provided that (1) Customer may be responsible for meeting certain requirements during Capital One’s provision of the Onboarding Service and Customer Success Service and Capital One will not be responsible for any action taken by Customer that is not in compliance with the Documentation and (2) Customer is current in its payment obligations to Capital One under this Agreement and is otherwise not in default under this Agreement. Customer will assign a singular point of contact to receive the Onboarding Service and Customer Success Service. Where applicable, to enable Capital One to provide the Onboarding Service and/or Customer Success Service, Customer will provide Capital One certain privileged roles in Customer’s Snowflake Platform environment in order for Capital One to provision new resources in accordance with the terms of Section 3(f).
4. Customer Assistance. Customer agrees to provide to Capital One access to Customer’s personnel, materials, equipment, facilities, and other resources necessary for Capital One to perform the Services and to otherwise reasonably cooperate with Capital One. Capital One will not be responsible for any failure or delay in performance to the extent such failure or delay is caused by Customer, and Capital One will be given additional time to complete the affected performance. Customer hereby grants Capital One a non-exclusive, fully-paid, royalty-free, non-transferable (except as provided in Section 14(e)), non-sublicensable (except to subcontractors) license to use the materials provided by Customer to perform the Services.
5. Subcontracting. Capital One may use subcontractors in the performance of the Services under this Agreement, provided that Capital One shall be liable for all of its obligations under this Agreement, including any acts or omissions by its subcontractors as if performed by Capital One.
PROPRIETARY RIGHTS.
1. Ownership. As between Customer and Capital One, Capital One is the sole and exclusive owner of all right, title and interest in and to the Licensed Materials and any other technology used in providing the Services, and all updates, upgrade, modifications, improvements and derivative works thereto, including all Intellectual Property Rights therein (collectively, “Capital One IP”). Customer agrees that the Capital One IP includes valuable trade secrets and other Intellectual Property Rights of Capital One and Capital One’s licensors and suppliers. By licensing the Licensed Materials to Customer, Capital One is not transferring any ownership rights to Customer, and Customer will not claim or attempt to gain ownership over or contest Capital One’s ownership of the Licensed Materials. Except as expressly provided in Section 2 or 3(b), there are no licenses granted to Customer under this Agreement. No implied licenses are granted under this Agreement.
2. Feedback. Customer may provide Capital One feedback and other suggestions, recommendations, feature requests, or comments regarding the Licensed Materials (collectively “Feedback”). Capital One will own and may use without any restriction any such Feedback which Customer may provide to Capital One.
COMPLIANCE WITH LAW.
1. Compliance with Law. Capital One shall provide the Services in accordance with all laws and regulations applicable to Capital One. Customer shall use the Software Service in accordance with laws and regulations applicable to Customer.
2. Anti-Corruption. In performing obligations under this Agreement, each Party and its representatives (i) will not offer to make, promise, authorize any payment or give anything of value, including bribes, either directly or indirectly to any public official or regulatory authority for the purpose of influencing, inducing or rewarding any act, omission or decision in order to secure an improper advantage, or obtain or retain business and (ii) will comply with all applicable anti-corruption and anti-bribery laws and regulations. Neither Party nor its representatives shall make any payment or provide any gift to a third party in connection with its performance of this Agreement except as may be expressly permitted in this Agreement.
3. Export Controls. Customer agrees to comply with all domestic and international export laws and regulations that may apply to the Services or the Licensed Materials. Customer further agrees that it will not export, reexport, or transfer, directly or indirectly, the Licensed Materials or the Services in violation of applicable export laws or regulations. In particular, but without limitation, Customer may not export or re-export the Licensed Materials or the Services (i) into any U.S. embargoed countries or (ii) to anyone on the List of Specially Designated Nationals and Blocked Persons (the “SDN List”) maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Customer represents and warrants that it is not located in any such country or on the SDN List, and that it is not directly or indirectly owned or controlled by, nor is it acting on behalf of, any person or entity located in any U.S. embargoed countries, on the SDN List, or otherwise the subject of any sanctions administered or enforced by OFAC, the US Department of State, or any other U.S. government authority. From time to time, Capital One may take steps to verify Customer’s compliance with the foregoing obligation and may terminate this Agreement, effective immediately and without prior notice, if Customer is in violation of the foregoing obligation.
FEES.
1. Fees. Customer shall pay all fees applicable to the Services as stated in the PO. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as expressly stated in this Agreement. Customer will pay all fees owed to Capital One without any setoff, deduction, or withholding for any reason. Customer is responsible for paying for all subscriptions ordered for the entire Term, whether or not such subscriptions are actively used. Capital One reserves the right to modify its fees and to introduce new fees for any Renewal Terms by providing notice of such modification no later than sixty (60) days before the start of the applicable Renewal Term.
2. Payment Term. The fees for the subscription of the Software Service are due within thirty (30) days after the date of the applicable invoice. The fees for the Software Service will be invoiced monthly in arrears. All other fees must be paid by Customer within thirty (30) days after the date of the applicable invoice. Customer will pay all fees owed under this Agreement through Capital One's billing platform.
3. United States Taxes. The provisions of this subsection (c) apply to taxes collected only within the Territory of the United States. Except as otherwise provided in this subsection (c), each Party shall be responsible for its own taxes, including income, franchise, privilege, gross receipts, sales and use, excise, property, payroll and any other taxes or assessments that may be levied by a taxing jurisdiction. Capital One shall be responsible for any sales, use, excise, value-added, services, consumption and other taxes and duties payable by Capital One on the goods or services used or consumed by Capital One in providing the Services. Customer shall be responsible for any sales, use, excise, value-added, GST, services, consumption or other transaction tax that is imposed or passed through to the Customer. Such taxes will be based on those laws applicable to the Customer’s billing address as provided by the Customer as part of this Agreement, as well as Capital One sales and use tax filing obligation(s). Changes to the Customer billing address will be updated on a prospective basis once the necessary information has been provided in writing by the Customer to Capital One. Capital One shall separately state such taxes on the invoice. The Parties shall cooperate with each other to enable each to more accurately determine its own tax liability and to address questions or audits by taxing authorities. Each Party shall provide and make available to the other any direct pay or resale certificates, information regarding out-of-state or out-of-country sales or use of equipment, materials, or services, and other exemption certificates or information reasonably requested by the other Party. Any payment to Capital One made hereunder shall be made free and clear of any deduction or withholding for tax (if any) and, in the event any deduction or withholding for tax would be required, Customer shall pay additional amounts to Capital One so that after such deduction or withholding, Capital One receives the same amount that it would have received but for such deduction or withholding.
4. Foreign Taxes. If the parties agree to expand the Territory to include locations outside of the United State, the tax provisions on Exhibit E will apply in addition to those in subsection (c) above.
5. Late Payment Fee. In addition to any other rights granted to Capital One herein, Capital One reserves the right to suspend or terminate the PO or the Services and Customer’s license to access and use the Software Service, if Customer’s account becomes delinquent (falls into arrears for more than thirty (30) days). Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection (including collection agency fees and reasonable attorneys fees). Customer will continue to be charged for the Services during any period of suspension. If Capital One terminates the PO due to Customer’s breach of this Agreement, Customer will be obligated to pay the cancellation fee as if Customer canceled the Services as described in Section 8(f). Customer agrees that Capital One may charge Customer such fees. Capital One reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter requests access to the Software Service.
6. Cancellation Fee. Customer may cancel the Services prior to the end of the then-current Term, without cause, upon sixty (60) days prior written notice to Capital One, subject to payment of the cancellation fee stated in the PO. Customer acknowledges that, in order to receive more favorable pricing, it has elected to enter into this Agreement, which requires a commitment to purchase the Services for at least the duration of the then-current Term. Accordingly, cancellation by Customer of the Services prior to the end of the then-current Term, without cause, will be subject to an early cancellation fee stated in the PO during the remainder of the then-current Term for the canceled Services had the Services not been canceled. To the extent the early cancellation fee is deemed to be liquidated damages, Customer acknowledges that the amount of damage Capital One would suffer as a result of Customer’s early cancellation of any subscription is difficult to estimate and that the early cancellation fee reflects the parties' reasonable estimation of the anticipated damages which Capital One may incur as a result of early cancellation by Customer.
REPRESENTATIONS AND WARRANTIES.
1. Mutual Representations and Warranties. Each Party represents and warrants that, as of the Effective Date: (i) such Party has full power and authority to enter into and perform this Agreement; (ii) its execution of, and performance under, this Agreement does not violate, conflict with, or result in a material default under any other material contract or agreement to which such Party is a party thereto; and (iii) this Agreement constitutes a legal, valid, and binding obligation, enforceable against such Party.
2. By Capital One. Capital One represents and warrants, and covenants, as applicable, that, as of the Effective Date: (i) it will perform the Support Service in a professional and workmanlike manner using personnel with required skills, experience, and qualifications; (ii) for a period of ninety (90) days after initial access to the Software Service, the Software Service will perform substantially as described in the Documentation under normal use and circumstances; and (iii) it has the right to grant a license to the Licensed Materials to Customer as provided under Section 3(b).
3. Remedy. If any of the Services fails to conform to the foregoing warranty provided in Section 9(b)(i) or (ii) and subject to Section 9(d), Customer will promptly notify Capital One in writing of the warranty breach and provide information reasonably requested by Capital One to investigate the breach. If Capital One agrees that the Service does not conform to the warranty, then as Customer’s exclusive remedy and Capital One’s sole obligation, Capital One will use commercially reasonable efforts to re-perform or promptly remedy such breach, provided that any breach of Section 9(b)(ii) will be remedied through the Support Services. If Capital One is unable to re-perform or remedy such breach as stated above, Customer may terminate the applicable Service without paying any cancellation fee and receive a refund of any amounts prepaid for the applicable Service not used prior to the termination of the Agreement.
4. Warranty Exclusions. The warranty provided in Section 9(b)(ii) shall be void to the extent any non-conformance is due to (i) use of the Software Service by Customer in violation of the terms and conditions of this Agreement or the Documentation, (ii) Customer’s or third party’s hardware, software, service or data (“Other Materials”), or (iii) use of the Software Service in combination with the Other Materials, unless such combination is intended or expected by both Parties.
5. By Customer. Customer represents and warrants, and covenants, as applicable, that, as of the Effective Date: (i) it will use the Services in compliance with laws and regulations applicable to Customer; and (ii) it has the right to grant a license to the Customer Data to Capital One as provided under Section 4(a).
6. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, THE SERVICES AND THE LICENSED MATERIALS ARE PROVIDED TO CUSTOMER "AS IS", WITH ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WITHOUT ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND EXCEPT AS PROVIDED IN THIS SECTION 9, CAPITAL ONE MAKES NO WARRANTY: (A) AS TO THE AVAILABILITY OF THE SOFTWARE SERVICE OR THE LICENSED MATERIALS OR CUSTOMER’S ABILITY OR INABILITY TO USE THE SOFTWARE SERVICE OR THE LICENSED MATERIALS; (B) AS TO THE SUITABILITY OF THE SOFTWARE SERVICE OR THE LICENSED MATERIALS TO MEET CUSTOMER’S REQUIREMENTS OR TO PROVIDE CUSTOMER WITH ANY ACTUAL COST SAVINGS; (C) THAT THE OPERATION OF THE SOFTWARE SERVICE OR THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE; OR (D) THAT ANY OR ALL DEFECTS IN THE SOFTWARE SERVICE OR THE LICENSED MATERIALS WILL BE CORRECTED. CUSTOMER IS RESPONSIBLE FOR PROPERLY USING THE SOFTWARE SERVICE AND THE LICENSED MATERIALS ACCORDING TO THE DOCUMENTATION.
LIMITATION OF LIABILITY.
1. Damages Waiver. NEITHER PARTY NOR ANY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES WILL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS, IN EACH CASE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, THE LICENSED MATERIALS OR THIS AGREEMENT, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
2. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES, LOSSES OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, IN CONNECTION WITH THE SERVICES OR THE LICENSED MATERIALS PROVIDED UNDER ANY PO ENTERED INTO PURSUANT TO THIS AGREEMENT, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO CAPITAL ONE UNDER SUCH PO DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS ON LIABILITY IN THIS SECTION 10 APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
3. Exclusion. NOTWITHSTANDING THE FOREGOING, THE LIMITATION ON LIABILITY IN SECTION 10(b) DOES NOT APPLY TO ANY AMOUNT PAYABLE BY CUSTOMER TO CAPITAL ONE UNDER SECTION 8, AND THE LIMITATIONS ON LIABILITY IN SECTIONS 10(a) AND 10(b) DO NOT APPLY TO ANY (I) FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF A PARTY, (II) BREACH OF SECTION 3(d) (RESTRICTIONS) OR SECTION 12 (CONFIDENTIALITY), OR (III) LOSSES PAYABLE TO A THIRD PARTY WITH RESPECT TO AN INDEMNIFICATION CLAIM UNDER SECTION 11 (INDEMNIFICATION).
INDEMNIFICATION.
1. By Capital One. Capital One will indemnify, defend, and hold harmless Customer, Customer’s Affiliates, and each of their directors, officers, employees, contractors, and agents against any and all damages, liabilities, losses, fines, expenses, and costs (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim by a third party based upon or arising from: (i) infringement or misappropriation of any Intellectual Property Rights in the Territory of the third party based on Customer and Authorized Users’ use of the Software Service as permitted under this Agreement; (ii) gross negligence or willful misconduct of Capital One or its personnel; (iii) violation of laws and regulation applicable to Capital One; (iv) injury to persons or damage to physical property based on actions or omissions of Capital One or its personnel; and (v) unauthorized access, use, or disclosure of Software Usage Data resulting from a material breach of Section 4 by Capital One.
2. Infringement Claim. If the Software Service becomes, or in Capital One’s opinion is likely to become, the subject of an infringement claim, Capital One may, in its sole discretion: (i) substitute service of substantially similar functionality; (ii) procure for Customer the right to continue using the Software Service; or (iii) terminate this Agreement without payment of any cancellation fee, in which case, Customer will cease using the Software Service. Notwithstanding the foregoing, Capital One will have no obligation under this Section 11 with respect to any infringement claim based upon (A) any unauthorized use of the Software Service, (B) any product, equipment, software or data not supplied by Capital One, or (C) any use of the Software Service in combination with any product, equipment, software, or data not supplied by Capital One, if but for such combination, there wouldn’t be an infringement claim. This Section 11 provides Customer’s exclusive remedy and Capital one’s sole obligation for any infringement of third party’s Intellectual Property Rights based on the Services or the Licensed Materials.
3. By Customer. Customer will indemnify, defend, and hold harmless Capital One, Capital One’s Affiliates, and each of their directors, officers, employees, contractors, and agents against any and all Losses resulting from any claim by a third party that is based upon or arising from: (i) infringement or misappropriation of any Intellectual Property Rights of the third party based on Capital One’s use of Customer Data as permitted under this Agreement; (ii) Customer’s provision of any data not required by Capital One in breach of Section 4(b); (iii) gross negligence or willful misconduct of Customer or its personnel; (iv) violation of laws and regulations applicable to Customer; (v) unauthorized access, use or disclosure of Licensed Materials or breach of Section 3(d) by Customer; and (vi) injury to persons or damage to physical property based on actions or omissions of Customer or its personnel.
4. Indemnity Conditions. A Party’s obligation to indemnify as provided in this Agreement is conditioned upon the indemnified Party promptly notifying the indemnifying Party in writing within a reasonable period of time of any and all claims for which the indemnified Party is entitled to indemnification, giving the indemnifying Party sole control of the defense thereof and any related settlement negotiations, and indemnified Party cooperating and, at indemnifying Party’s request and expense, assisting in such defense. The indemnified Party may participate in the defense of the claim at its own expense with counsel of its own choosing. The indemnifying Party may not settle any such claim without the indemnified Party’s prior written consent, not to be unreasonably withheld or delayed, unless such settlement fully releases the indemnified Party of all Losses arising from such claims or such settlement is limited to monetary relief which is the responsibility of the indemnifying Party.
CONFIDENTIALITY. The following provisions shall apply to any Confidential Information provided by either Party under this Agreement.
1. Confidential Information. As used herein, “Confidential Information” means any confidential information that a Party (“Discloser”) discloses to the other Party (“Recipient”) under this Agreement and that: (i) if disclosed in tangible or electronic form, is marked in writing as “confidential” or “proprietary”; (ii) if disclosed orally or visually, is designated at the time of disclosure as “confidential” or “proprietary”; or (iii) under the circumstances of its disclosure, a reasonable Party would deem to be nonpublic, confidential or proprietary. Notwithstanding the foregoing, (A) the Licensed Materials, including any product roadmap information, Benchmark Data, and pricing information of the Services will be considered Confidential Information of Capital One, and (B) Software Usage Data (other than Benchmark Data) will be considered Confidential Information of Customer, in each case, whether or not identified as “confidential” or “proprietary”.
2. Exclusion. Confidential Information does not include information that Recipient can demonstrate: (i) was, at the time of disclosure, in the public domain or, after disclosure, has become part of the public domain through no act or omission of Recipient; (ii) is or was developed independently by Recipient without use of or access to Confidential Information; (iii) was in the possession of Recipient, without confidentiality restrictions, at the time of disclosure; or (iv) is provided to Recipient by a third party who is not subject to an obligation of confidentiality. If Recipient is legally compelled to disclose any Confidential Information, Recipient may disclose only that portion of such Confidential Information that Recipient is legally compelled to disclose, provided Recipient promptly notifies Discloser in writing of such requirement so that Discloser has an opportunity to obtain a protective order or other appropriate remedy.
3. Confidentiality Obligation. Recipient agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall not be less than Recipient exercises to protect its own confidential information of similar kind. Recipient may disclose Confidential Information only to its employees, contractors, and agents who need to know such information for purposes of this Agreement and shall contractually require such employees, contractors and agents to comply with the obligations of confidentiality. Customer agrees that Capital One may use and disclose any Confidential Information of Customer to the extent necessary to operate and provide the Services.
4. Rights to Confidential Information. Recipient agrees that upon termination of this Agreement or upon the request of Discloser, Recipient shall return the Confidential Information to Discloser or destroy the Confidential Information as directed by Discloser; provided however, Recipient may retain a copy of any Confidential Information, including summaries, compilations or analyses thereof to the extent: (i) required by applicable law; (ii) required by Recipient’s internal document retention and governance policies; or (iii) it would be unreasonably burdensome to destroy such Confidential Information (such as archived computer records). Any Confidential Information retained pursuant to subsections (i), (ii) or (iii) shall continue to be treated as Confidential Information subject to the restrictions set forth in this Agreement, notwithstanding any termination or expiration hereof. The return or destruction of Confidential Information shall not relieve Recipient of its obligations set forth in this Agreement. Recipient’s duty to hold Confidential Information (other than the Licensed Materials and Software Usage Data) in confidence expires two (2) years after this Agreement terminates. Customer’s duty to hold the Licensed Materials and Capital One’s duty to hold Software Usage Data in confidence remain in perpetuity, subject to exceptions stated set forth in Section 12(b).
TERM AND TERMINATION.
1. Term. This Agreement is effective on the date that the Customer is first able to access the Software Service (the “Effective Date”) and will continue until the termination or expiration of the Evaluation License, unless Customer purchases a subscription to the Software Service, in which case, this Agreement will continue until the expiration of the initial duration stated in the PO (the “Initial Term”). After the Initial Term, the PO (other than the Evaluation License) will automatically renew for successive one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Term.
2. Termination with Cause. In addition to Capital One’s right to terminate this Agreement pursuant to Section 7(c), either Party may terminate this Agreement prior to the expiration of its Term if: (i) the other Party materially breaches any term or condition of this Agreement, and if such breach is capable of cure, such breach is not cured by the breaching Party within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or (ii) (A) a voluntary petition in bankruptcy shall be filed by the other Party, (B) an involuntary petition in bankruptcy or petition alleging insolvency or inability to pay debts when due in the ordinary course of business shall be filed against the other Party and not be dismissed within thirty (30) days, (C) a receiver shall be appointed for the assets of the other Party and not be dismissed within thirty (30) days, or (D) the other Party makes an assignment for the benefit of creditors, shall become insolvent, or shall be unable to pay its debts when due in the ordinary course of business.
3. Termination without Cause. Customer may terminate this Agreement without cause upon sixty (60) days prior written notice to Capital One, provided that Customer must pay the cancellation fee as stated in Section 8(f). In addition, Customer may terminate the Evaluation License without cause and without payment of any cancellation fee upon ten (10) business days prior written notice to Capital One.
4. Effects of Termination. Upon termination or expiration of this Agreement, (i) the licenses granted under the PO will terminate automatically, (ii) Capital One may revert Customer’s Snowflake Platform environment back to the settings in place prior to Customer’s use of the Software Service such that all prior recommendations made by the Software Service will no longer be available to Customer, and (iii) Customer must immediately cease using such Software Service and return to Capital One or destroy (as directed by Capital One) all copies of the Licensed Materials. Capital One has no obligation to retain any Customer Data and may delete such Customer Data.
5. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement, including Sections 3(d), 4(a), 6, 9(f), 10, 11, 12, 13(d), and 14 and any outstanding payment obligation shall survive termination or expiration of this Agreement and continue in full force and effect.
6. Suspension. Without limiting Capital One’s right to terminate this Agreement, Capital One may suspend the Services provided under this Agreement if Customer has materially breached any term or condition of this Agreement, including Section 3(d) or Section 7(c), is overdue on payment by more than thirty (30) days, if the applicable Software Service is experiencing, or suspected of experiencing any security breach or attack or if suspension is required by law or at the request of the government, if Capital One’s or Customer’s access to the Marketplace has been suspended for any reason.
MISCELLANEOUS.
1. Governing Law; Jurisdiction. This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of law. The Parties agree that the Uniform Computer Information Transactions Act or any version thereof shall not apply to this Agreement. Each Party agrees to the exclusive jurisdiction and venue of the Federal and State courts located in Wilmington, Delaware, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
2. Waiver of Jury Trial. THE PARTIES HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION (WHETHER SOUNDING IN CONTRACT OR TORT) ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH, THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THEM.
3. Government End User. The Licensed Materials are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Licensed Materials with only those rights set forth herein.
4. Publicity. Upon mutual agreement, the Parties may issue a joint press release announcing this transaction. Capital One may identify Customer as a customer of the Services, including in advertisements and other public announcements and/or use Customer name or logotype in customer lists on marketing collateral. Upon Capital One’s request, Customer agrees to act as a reference, including participating in calls with prospective customers, participate in case studies and attend Capital One marketing events. Otherwise, neither Party will, without the other Party’s prior written consent, use the other Party’s name, trademarks, trade names, service marks or logos (collectively, “Trademarks”). Customer hereby grants Capital One a non-exclusive, royalty-free license to use Customer’s Trademarks solely for purposes stated in this Section.
5. Assignment. Neither Party may assign or transfer this Agreement or any rights or obligations under this Agreement to any third party, without the other Party’s express prior written consent, except either Party may assign this Agreement with prior written notice to the other Party to its Affiliate or in connection with merger, change in control, or other transfer of all or substantially all of the assets of the assigning Party which pertains to this Agreement. Any attempted assignment in violation of the foregoing will be null and void.
6. Notice. Any notices that a Party is permitted or required to give to the other Party hereunder may be given by personal delivery, email, or postal mail at the address stated in the PO for Customer and at the address stated in the PO for Customer and at the following address for Capital One: Capital One Software, LLC, 1680 Capital One Drive, McLean, VA 22102, Attention: Capital One Software Operations; email: gtmops@capitalone.com with a copy (which shall not constitute notice) to Capital One Software Legal at COSLegalNotices@capitalone.com. All notices will be deemed effective upon receipt.
7. Interpretation. Unless the context requires otherwise, as used in this Agreement, the term “including” means “including without limitation” and the term “include(s)” means “include(s) without limitation.” Each and every provision of this Agreement shall be construed as though both Parties participated equally in the drafting of same, and any rule of construction that a document shall be construed against the drafting party, including without limitation, the doctrine commonly known as contra proferentem, shall not be applicable to this Agreement.
8. Entire Agreement. This Agreement, including the PO, constitutes the entire agreement between Customer and Capital One relating to the subject matter herein, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between Customer and Capital One relating to such subject matter. Additional or conflicting terms provided with any purchase orders, acknowledgements or other standard purchasing documents shall be null and void. To the extent there is any conflict between the terms of this Agreement, and any exhibit hereto, the order of precedent shall be this Agreement, then the exhibit. To the extent there is any conflict between the terms of this Agreement (including any exhibit thereto) and the PO, the order of precedence shall be this Agreement (including any exhibit thereto), then the PO, unless the PO expressly and specifically states an intent to supersede this Agreement on a specific matter. Any amendment to this Agreement must be in writing and signed by authorized representatives of both Parties.
9. Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal by a court of competent jurisdiction, the other provisions of this Agreement shall continue in full force and effect.
10. Waiver. Any act by a Party to exercise, or failure or delay in exercise of, any of its rights under this Agreement or at law or in equity shall not be deemed a waiver of those or any other rights or remedies available in contract, at law or in equity. All waivers must be in writing.
11. Injunctive Relief. The Parties agree that any breach of Section 3 by Customer or breach of Section 12 by a Party would cause the other Party irreparable harm, and money damages and other remedies available at law would not be adequate to compensate the other Party. Accordingly, each Party agrees that the other Party shall be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance, as a remedy for any such breach.
12. Force Majeure. Subject to the limitations set forth below and except with respect to any payment obligations of Customer, neither Party shall be held responsible for any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or military authority, explosion, epidemic, pandemic, casualty, flood, riot or civil disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software, insurrections, any general slowdown or inoperability of the Internet (whether from a Malicious Code or other cause), or any other similar event that is beyond the reasonable control of such Party (each, a “Force Majeure Event”). If a Force Majeure Event prevents either Party from performing its obligations under this Agreement for more than thirty (30) days, the other Party may terminate this Agreement without payment of a cancellation fee.
13. No Third Party Beneficiaries. This Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns and not for the benefit of, nor may any provision in this Agreement be enforced by, any third party, except as otherwise set forth in Section 11.
14. Relationship of the Parties: Each Party is an independent contractor under this Agreement. Nothing in this Agreement is intended or will be deemed to constitute a partnership, agency, employer-employee or joint venture relationship between the Parties. No Party will incur any debts or make any commitments for the other.

Exhibit A Definitions

As used herein, the following terms have the meanings respectively assigned thereto:

“Affiliate” of a Party means any entity that the Party directly or indirectly controls, is controlled by, or is under common control with, where “control” means ownership of more than fifty percent (50%) of the outstanding voting stock or other equity interests in the entity or the power to otherwise direct the management of the entity.

“Authorized Users” is defined in Section 3(b).

“Benchmark Data” means statistical, system, usage, and configuration data regarding Customer’s usage of the Services.

“Capital One IP” is defined in Section 6(a).

“Capital One Privacy Policy” means Capital One’s privacy policy describing Capital One’s collection and use of information, including Personal Information, in the course of providing the Services and available at www.capitalone.com/privacy, as may be amended from time to time.

“Confidential Information” is defined in Section 12(a).

“Customer Contact” is defined in Exhibit C.

“Customer Data” is defined in Section 4(a).

“Customer Success Service” is defined in Section 5(c).

“Discloser” is defined in Section 12(a).

“Documentation” means user guides, manuals, instructions, and/or documentations provided or made available by Capital One in connection with the configuration and/or use of the Software Service, including all updates and amendments thereto.

“Effective Date” is defined in Section 13(a).

“Evaluation License” is defined in Section 2.

“Feedback” is defined in Section 6(b).

“Force Majeure Event” is defined in Section 14(l).

“Initial Term” is defined in Section 13(a).

“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, continuations, divisions, and reissues of, and applications for, any of the rights referred to in clauses “(i)” through “(v)” above.

“Licensed Materials” is defined in Section 2.

“Losses” is defined in Section 11(a).

“Malicious Code” means any virus, malware, trapdoor, time bomb, Trojan horse or any other malicious code designed to disrupt, disable, harm, or otherwise impede, or capable of disrupting, disabling, harming, or otherwise impeding, in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed or damaging or destroying any data or file without authorization, provided that Malicious Code does not include any code used by Capital One to disable Customer, Customer’s Affiliates, or Authorized Users’ access to the Software Service.

“Onboarding Service” is defined in Section 5(c).

“Other Materials” is defined in Section 9(d).

“Party” means Capital One or Customer, as applicable, and “Parties” means both Capital One and Customer.

“Personal Information” means any information or combination of information that Capital One (or any of its subcontractors) Processes in connection with the Services, that refers to, is related to, is associated with, or can be reasonably linked to a data subject or to a specific computing device, and shall include all “personal data,” “personal information,” or similar terms, as defined in any applicable laws. For clarity, Personal Information includes such data that can identify or re-identify an individual by combining data to which Capital One has access with any cryptographic, validating, decryption or other key that Capital One holds or has access to.

“Planned Outage” is defined in Exhibit D.

“PO” is defined in Section 3(a).

“Process” and “Processing” means any operation or set of operations which is performed on data or information, such as the use, collection, processing, storage, recording, organization, adaption, alteration, transfer, retrieval, consultation, disclosure, dissemination or combination of such data or information.

“Recipient” is defined in Section 12(a).

“Renewal Term” is defined in Section 13(a).

“SDN List” is defined in Section 7(c).

“Services” means the Software Service, the Support Service, Onboarding Service, and the Customer Success Service to the extent provided by Capital One to Customer under this Agreement.

“Snowflake” means Snowflake Inc.

“Snowflake Platform” means the data warehouse software platform provided by Snowflake, which is integrated with the Software and necessary for the operation of the Software.

“Software Usage Data” is defined in Section 4(a).

“Support Service” means supporting and maintaining the Software as described in Exhibit C.

“Term” is defined in Section 13(a).

“Territory” means the United States only, unless the Parties expressly agrees to add any additional country or region requested by Customer to the Territory, as specified in the PO where Customer’s Authorized Users may access and use the Licensed Materials.

“Trademarks” is defined in Section 14(d).

“Trial Period” is defined in Section 2.

Exhibit B Purchase Order [Form]

This Purchase Order (“PO”) is made on ___ (“Order Effective Date”) by and between Capital One Software, LLC (“Capital One”) and [Customer Name] (“Customer”). This PO is entered into pursuant to the Capital One: Slingshot Software Service Agreement between the Parties available at [https://www.snowflake.com/en/data-cloud/marketplace/] (the “Agreement”) and therefore subject to and incorporates by reference the terms and conditions of the Agreement. All capitalized terms used and not expressly defined in this PO will have the meanings given to them in the Agreement. To the extent there is any conflict between the terms of the Agreement (including any exhibit thereto) and PO, the order of precedence shall be the Agreement (including any exhibit thereto), then this PO, unless this PO expressly and specifically states an intent to supersede the Agreement on a specific matter.

Customer and Billing Information

Name:

Address:

Billing Company Contact Information (if applicable):

Billing Company:

Contact Name:

Phone No.:

Email:

Software Service Details

Software Service:

Capital One Slingshot - used to adopt and manage Snowflake’s cloud-based data cloud platform.

Territory:

United States: ☐

Other Countries: ________________

(Additional terms and conditions may apply if Other Countries are added to the Territory).

Initial Term:

Twelve (12) months from the date of execution of this PO by both Parties.

Fees and Payment Term:

Software Service Fee:
Onboarding Service Fee:	No charge
Customer Success	No charge

In Witness Whereof, the Parties have caused this PO to be executed and effective as of the Order Effective Date.

Capital One Software, LLC

[Customer]

By: ____________________

Name: _________________

Title: ___________________

By: ____________________

Name: _________________

Title: ___________________

Exhibit C Support and Maintenance Terms

1. General. Capital One offers support and maintenance services. These services are included with the Software Service at no additional charge. Capital One will provide Customer the support and maintenance services as described below.

2. Support and Maintenance Services. Support and maintenance services include the following:

2.1 Maintenance Releases and Upgrades: During the Term, Capital One agrees to provide Customer any bug fixes, error corrections, updates and upgrades to the Software Service, which Capital One generally makes available to all customers. Capital One may offer Customer new modules or add on features and functionalities that are available for purchase.

2.2 Support: Capital One will use commercially reasonable efforts to provide Customer support for (a) configuration issues, (b) questions regarding the usability and specific functions, (c) problem diagnosis, and (d) provision of work-arounds where feasible, in each case, with respect to the Software Service. Support will be available during the following support hours: 9:00am-6:00pm ET. Customer may submit a support request to help@support.capitalonesoftware.com. When submitting a support request, Customer will provide all information relevant to the request or requested by Capital One that are reasonably necessary to provide the support service.

2.3 Customer Contact: Customer will designate one primary contact as a support liaison to manage support requests to Capital One (“Customer Contact”). Customer Contact must be reasonably trained in the use and functionality of the Software Service and be familiar with the contents of the Documentation. Prior to contacting Capital One, Customer Contact will review the support request to ensure that a perceived defect, error, or issue is not due to user error or Customer’s or third party’s software, hardware, data, or service, or that a known workaround has not already been provided for such defect, error or issue.

2.4 Response. Upon receiving a support request, Capital One will review the support request. Capital One will use commercially reasonable efforts to acknowledge receipt of the support by providing an initial response within twelve business hours and will provide regular status updates after providing the initial response and work diligently to provide a temporary workaround as soon as possible.

2.5 Conditions. Capital One will not be responsible for providing support to Customer when the defect, error, or issue is due to (i) user error, (ii) Customer’s or third party’s software, hardware, data, or service issue, including a Snowflake Platform, (iii) Customer’s use of the Software Service other than in accordance with the Documentation or Customer induced issues such as changes to the configuration, or (iv) a Force Majeure Event. Capital One reserves the right to bill Customer for such non-supported service at Capital One’s standard time and material charges for services that fulfill this criteria. Support Service is not an on-site service and does not include support for Customer’s hardware, software, or network.

Exhibit D Service Level Agreement

1. Capital One will provide the Software Service with a minimum availability of 99.5%; provided, however, that Capital One reserves the right to suspend availability of the Software Service for the purpose of maintenance or updating during “off-peak” hours (“Planned Outage”). Capital One will use commercially reasonable efforts to keep these periods of unavailability as short as reasonably possible.

2. Availability of the Software Service for a given month will be measured by a quotient (multiplied by 100), the denominator of which will equal the aggregate amount of hours in the calendar month, and the numerator of which will equal all such hours minus the sum of all hours during which the Software Service is unavailable other than due to Planned Outage.

3. For purposes of determining the Software Service’s availability and unavailability hereunder, the Software Service will be deemed unavailable only when Customer is unable to access the entire Software Service or all of the major features and functionalities of the Software Service and such unavailability is because of issues within the control of Capital One. For example, the following are not within the control of Capital One: (i) downtime caused by or arising from acts or omissions of Customer or a third party, including a third party of Customer’s product, software, service or data; (ii) downtime arising from Planned Outage; (iii) unscheduled downtime for emergency installation of patches, fixes, error corrections, service packs or protection measures against Malicious Code; or (iv) unscheduled downtime to the extent attributable to Force Majeure Events.

4. If Capital One fails to meet the availability requirement during any month, Customer will be entitled to receive a service credit (to be applied against the next month’s monthly fee), provided below, provided that: (i) the total amount of the service credit shall not exceed 20% of the monthly fee; and (ii) Customer requests the services credit within ten (10) business days after the end of the applicable month.

Service Availability	Service Credit as % of Monthly Fee
<99.5% but >= 99%	2%
<99% but >=95%	10%
<95%	20%

5. If Capital One fails to meet the availability requirement during three or more months in any twelve (12) month period, Customer may terminate the Agreement. The service credit described above and the right of termination constitutes Customer’s exclusive remedy for Capital One’s failure to meet the availability requirement.

Exhibit E INTERNATIONAL TAX PROVISIONS

(Not Applicable if Territory Limited to US)