Terms of Service

Lakemine End User License Agreement

TERMS OF USE FOR LAKEMINE, a Databricks cost optimization SaaS product (the “Service”) provided to customers operating Databricks workloads on AWS, Azure, and Google Cloud Platform (these “Terms of Use”).

Important: READ CAREFULLY. THE RIGHT TO ACCESS AND USE THE LAKEMINE COST OPTIMIZATION SERVICE BY BUSINESS, GOVERNMENTAL, AND OTHER LEGAL ENTITIES IS SUBJECT TO AND CONDITIONED ON ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF USE. Any additional, conflicting, or different terms or conditions proposed by Company in any Company-issued document (such as a Purchase Order) are hereby rejected and excluded.

Trial and Paid Use: The Service is made available by Lakemine to eligible account holders. The Service is not available or sold for personal, home, or consumer use by any individual.

Effective Date: [Insert Effective Date]

Lakemine (“Lakemine,” “we,” “us,” or “our”) is the provider of the Service. “Lakemine” means [Insert Legal Entity Name], a [Insert Jurisdiction] company.

COMPANY IS ORDERING OR HAS ORDERED THE LAKEMINE SERVICE, WHETHER DIRECTLY BY PLACING AN ORDER OR THROUGH AN ONLINE REGISTRATION, FOR ACCESS AND USE IN CONNECTION WITH COMPANY'S INTERNAL BUSINESS USE. BY COMPANY:

• PLACING AN ORDER FOR THE SERVICE;
• CAUSING LAKEMINE TO PROVISION THE SERVICE; AND/OR
• CONNECTING A DATABRICKS OR CLOUD ENVIRONMENT TO, ACCESSING, OR USING THE SERVICE,

COMPANY AGREES THAT ANY SUCH ACTION CONSTITUTES:

• COMPANY'S ACKNOWLEDGEMENT THAT IT HAS HAD THE OPPORTUNITY TO READ AND REVIEW THESE TERMS OF USE,
• COMPANY'S ACCEPTANCE AND AGREEMENT TO THESE TERMS OF USE FOR THE SERVICE,
• COMPANY'S ONGOING REPRESENTATION AND WARRANTY THAT COMPANY MEETS, AND AT ALL TIMES WILL COMPLY WITH, ALL OF THE TERMS, CONDITIONS, AND REQUIREMENTS SET FORTH IN THESE TERMS OF USE, AND
• COMPANY'S REPRESENTATION AND WARRANTY THAT THE REPRESENTATIVE ACTING ON ITS BEHALF IS AUTHORIZED TO ACCEPT, AGREE, AND BIND COMPANY TO THESE TERMS OF USE.

COMPANY AGREES THAT WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE TERMS OF USE, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL SHALL BE CONSTRUED TO THE CONTRARY.

IF COMPANY DOES NOT ACCEPT AND AGREE TO THESE TERMS OF USE, COMPANY MAY NOT ORDER, REGISTER, DEPLOY, ACCESS, OR USE THE SERVICE, AND WILL IMMEDIATELY NOTIFY LAKEMINE THAT COMPANY DOES NOT AGREE AND WILL NOT BE ACCESSING OR USING THE SERVICE. AGREED DEFINITIONS USED IN THESE TERMS OF USE ARE IN SECTION 1.2 BELOW.

1. Overview; Agreed Definitions

1.1.1 Application of These Terms of Use

Subject always to termination in accordance herewith, these Terms of Use apply only to the Service for such time as the Service is subject to an outstanding Order that Company has issued to, and that has been accepted by, Lakemine.

1.1.2 Entire Agreement

The Company and Lakemine agree that these Terms of Use are the final, complete, and exclusive statement of the agreement between the Parties with respect to access to and use of the Service secured by Company under an Order. Any prior written agreements, representations, statements, or advertising of Lakemine (whether oral or written), or otherwise arising from any course of dealing between the Parties or usage of the trade, that are not specifically set forth in these Terms of Use with respect to the subject matter hereof are merged into and superseded by these Terms of Use. Lakemine will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of these Terms of Use and that is submitted by Company in any Order, confirmation, correspondence, or other document. In entering into these Terms of Use, each Party represents and warrants to the other that it is not relying on any extrinsic representation, warranty, guarantee, covenant, promise, forbearance, or inducement of any kind that is not specifically set forth in these Terms of Use.

1.1.3 Master Agreement

Company acknowledges that this is a master agreement for subsequent purchases of the Service. Each subsequent Order placed by Company will be made subject to and conditioned on the agreement of the Parties to the then-current version of these Terms of Use, unless otherwise agreed in writing signed by the Parties.

1.2 Agreed Definitions

In addition to definitions set forth elsewhere in these Terms of Use (including all policies, procedures, and Lakemine websites that are referenced and incorporated herein), the following initially capitalized terms shall have the meanings set out in this Section 1.2 (each an “Agreed Definition”), and all Agreed Definitions apply equally to the singular, plural, and derivative forms.

“Administrator” means one or more Company employees authorized to manage the Service on behalf of Company. Each Administrator will have the ability to configure, maintain, set rules and policies for, assist Lakemine in delivery of, view alerts and reports generated by, and provide technical support for, all or part of the Service as determined by Company from time to time.

“Affiliate” means, as to a Party, each person that Controls, is Controlled by, or is under common Control with such Party. “Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity interests entitled to vote for the management of such Party, but only for as long as such ownership continues to exist.

“Applicable Laws” means all U.S. and foreign national, federal, provincial, state, municipal, and local laws, statutes, regulations, rules, codes, treaties, executive orders, official directives, and other official releases applicable from time to time to a Party's performance of its obligations or exercise of its rights hereunder, including data protection and privacy laws, anti-corruption laws, and export and import laws.

“Cloud Provider” means Amazon Web Services, Microsoft Azure, Google Cloud Platform, Databricks, Inc., or any other infrastructure or data platform provider whose environment Company connects to the Service.

“Cloud Account” means Company's active account with a Cloud Provider that Company connects to the Service.

“Company” refers to an entity that: (a) has agreed to these Terms of Use with respect to the Service; (b) has ordered, accesses, or uses the Service (only in accordance with these Terms of Use); and (c) has one or more active Databricks and cloud accounts.

“Company's Configuration” shall have the meaning set forth in Section 4.2.2.

“Company Data” means all content, materials, data, and information owned by Company or any third party that is forwarded or otherwise provided by Company: (a) when accessing or using the Service, or that Company derives from its use of the Service, such as Company-specific savings reports and cost analyses generated by the Service; or (b) otherwise provided to Lakemine by Company in connection with Support Services. Company Data may include Personal Data or other data regulated, protected, or controlled under Applicable Laws.

“Confidential Information” shall have the meaning set forth in Section 6.1.

“Controlled Technology” shall have the meaning set forth in Section 10.4.

“Consumption Data” means the usage, billing, configuration, and metadata that the Service reads from Company's connected Databricks and Cloud Accounts for the purpose of analyzing and optimizing Databricks spend, including DBU consumption records, cluster and job configurations, workspace settings, and associated invoice or billing metadata.

“Data Subject” shall have the meaning set forth in the definition of Personal Data.

“Service” or “Lakemine” means Lakemine's Databricks cost optimization software, hosted and made available by Lakemine, which Company may access and use for the applicable Usage Metric or fixed-price license metric that Company has ordered. The term Service also includes any User Documentation, Enabling Software (if any), and all error corrections, bug fixes, updates, upgrades, new versions, and releases of the Service that Lakemine elects to make available. The term Service does not include any Cloud Provider service. These Terms of Use do not grant Company any right to receive a binary code copy of any Lakemine software except for Enabling Software (if any) that forms part of the Service.

“Service Feedback” shall have the meaning set forth in Section 6.2.

“Different Terms” shall have the meaning set forth in Section 2.3.

“Enabling Software” means binary code software (if and only if required by the Service's User Documentation) that Lakemine may publish and license hereunder, installed on Company's devices to enable optimal access to and use of the Service, and that does not perform functionality without the active right to access and use the Service.

“End User” means any individual or entity that: (a) accesses or uses the Service for Company's benefit in accordance with these Terms of Use, such as Company's Administrators or technical resources; or (b) otherwise accesses or uses the Service.

“Evaluation Service” shall have the meaning set forth in Section 2.5.

“Internal Business Use” means the internal business access and use of the Service solely by and for the direct benefit of Company, specifically in connection with the analysis, monitoring, and optimization of Company's Databricks and cloud consumption and spend.

“IP Claim” means any suit, cause of action, or other legal proceeding brought against Company by an unaffiliated third party alleging that Company's use of the Service (excluding Third Party Technology or Cloud Provider services) directly infringes any patent or copyright of such third party, or makes unlawful use of a trade secret of such third party. The term IP Claim does not include any proceeding arising out of: (a) any use of the Service not in accordance with these Terms of Use, its User Documentation, or Applicable Laws; (b) any modification to the Service not made by Lakemine; (c) Company Data or other materials Company provides; (d) any redistribution or use of the Service for the benefit of any third party not permitted herein; (e) any use of the Service after Lakemine's notice to cease use under Section 9.1.2; (f) Evaluation Service use; or (g) any allegation involving the use of the Service in combination with any other software, service, business process, or technology offered by a Cloud Provider or any third party.

“Order” refers to the Lakemine order form, quotation, or online registration (including a registration webpage, if applicable) pursuant to which Company obtains access to the Service.

“Party” means each of Company and Lakemine, and together the “Parties.” All other persons are third parties.

“Personal Data” means one or more data elements relating to an identified or identifiable natural person (each a “Data Subject”) supplied by Company that can be used to identify, directly or indirectly, such Data Subject to the extent regulated under Applicable Laws, including identifiers such as a name, email address, identification number, location data, IP address, cookie ID, or online identifier.

“Process” shall have the meaning set forth in Section 4.3.

“Privacy Policy” of Lakemine is available at https://lakemine.ai/privacypolicy, which is incorporated herein by reference and made a part hereof, as may be amended from time to time.

“Sub-processor” is described in Section 4.4.

“Support Services” are described in Section 5.1.

“Term” is described in Section 8.1.

“Third Party Technology” shall have the meaning set forth in Section 2.3.

“Third Party Claim” means any suit, cause of action, governmental inquiry, or other proceeding brought by or for the benefit of a Data Subject or other third party against Lakemine arising out of or in connection with: (a) an allegation that Company failed to provide adequate notice to, or secure the rights, consents, and approvals of, each Data Subject or other third party source of Company Data as required in Section 4; (b) an allegation that Company caused Company Data to be processed by the Service without securing all necessary consents in a manner that violated the rights of, or caused harm to, such Data Subject or third party; or (c) Lakemine's response to a subpoena, court order, or other official inquiry regarding Company Data or Company's use of the Service.

“Usage Metric” means Lakemine's standard of measurement for determining permitted use and calculating the fees due for the Service. The applicable Usage Metric may be defined as a percentage of audited savings, a fixed period of time, a per active DBU rate, a number of users or connected environments, or another metering mechanism specified in the Order. Depending on the license purchased, the Usage Metric may also be a fixed fee charged on a monthly or yearly basis for the Service rendered.

“User Documentation” means the printed, electronic, and online technical documentation and operating instructions generally made available by Lakemine for the Service (and Enabling Software, if any) to support Company's Internal Business Use. The User Documentation is incorporated herein and may be revised from time to time by Lakemine at its discretion as the Service is updated, without the need to amend these Terms of Use.

2. Grant; License to Enabling Software; Open Source; Acknowledgement; Evaluation

2.1 Grant

2.1.1 Grant of Access to and Use of the Service

On the terms and subject to Company's continuous compliance with all conditions, exclusions, and restrictions set forth in these Terms of Use, Lakemine grants only to Company a non-exclusive, non-transferable, terminable (in accordance herewith or Applicable Law), worldwide (subject to exclusions imposed by Lakemine or Applicable Law, such as export and import laws) right to access and use the Service in accordance with its User Documentation, only for Company's Internal Business Use, for such time and only for the Usage Metric as ordered and paid for (in accordance with agreed payment terms) by Company, until the expiration or termination of the foregoing grant in accordance herewith.

2.1.2 License to Enabling Software

If the Service is accompanied by Enabling Software, then by downloading or installing any Enabling Software, Company agrees not to use it for any purpose other than to facilitate Company's access to and use of the Service. Subject to these Terms of Use, Lakemine grants Company (solely for Internal Business Use) a non-exclusive, non-transferable, worldwide (subject to applicable export and import laws), terminable license to install and use any Enabling Software on equipment owned or operated by or on behalf of Company, solely as needed to access the Service as described in the User Documentation, provided that Company:

• at all times complies with these Terms of Use;
• ensures that anyone (including End Users) who accesses the Enabling Software does so only on Company's behalf and complies with these Terms of Use;
• does not install, access, use, copy, modify, or distribute the Enabling Software except as expressly permitted, and does not reverse assemble, reverse compile, or reverse engineer the Enabling Software; and
• does not use any of the Enabling Software's components separately from the Enabling Software.

Company acknowledges that the Enabling Software is copyrighted and licensed, not sold, and that no license, right, title, or interest in any patent, copyright, trade secret, or other intellectual property of Lakemine or any third party is granted except as expressly stated. Where permitted in the User Documentation, Company may make a single copy of the Enabling Software for backup, archival, and disaster recovery purposes, which copy must be promptly uninstalled and irretrievably destroyed when Company no longer has a right to access the Service. As of the Effective Date, no Enabling Software is published in binary code form for the Service; any subsequent change will be reflected in an amendment to the User Documentation.

2.2 Acceptable Use

Company will not make any use of, or perform any acts with respect to, the Service other than as expressly permitted by its User Documentation, these Terms of Use, and the ordered Usage Metric. Company may not, and will not authorize or permit third parties to:

• Disable, tamper with, or circumvent any billing or metering mechanism that measures Company's use of the Service or the savings on which fees are calculated, or otherwise use the Service in a way intended to avoid incurring fees or exceeding the Usage Metric, or attempt to gain unauthorized access to the Service.
• Modify, adapt, copy (except as permitted for Enabling Software), translate, disassemble, decompile, or reverse engineer the Service, or otherwise attempt to derive its source code or create derivative works, unless and only to the extent such restriction is prohibited by Applicable Laws without the possibility of written waiver, or by Different Terms governing Third Party Technology. Configuring the Service within its documented policy parameters shall not constitute a modification or derivative work.
• License, sublicense, sell, resell, loan, rent, lease, transfer, assign, or distribute the Service (or any portion) to any third party.
• Use the Service as a paid or unpaid service bureau, to provide services to third parties on a time-share basis, or otherwise commercially exploit or make the Service available to any third party.
• Access, observe, or use the Service to assist in the creation of a competitive product or service, or copy any ideas, features, functions, organization, structure, or user interface of the Service, unless and only to the extent permitted by Applicable Laws without the possibility of written waiver.
• Access or use the Service above the quantity and Usage Metric that Company has ordered and paid for.
• Publish or make available to any third party any benchmark tests or analysis relating to the Service without Lakemine's express written permission, except that Company may conduct internal benchmarking in connection with an Evaluation Service to make a procurement decision for its Internal Business Use.

2.3 Open Source and Other Third Party Technology

Enabling Software may be bundled or distributed with free, open source, or other third party software (“Third Party Technology”) that is subject solely to the terms, conditions, and disclaimers of the specific license (each “Different Terms”) under which such Third Party Technology is redistributed to Company by Lakemine, and not these Terms of Use. Different Terms applicable to any Third Party Technology will be identified by Lakemine in the User Documentation or in a “Read Me” or “About” file. THIRD PARTY TECHNOLOGY IS PROVIDED “AS IS, WITH ALL FAULTS, AS AVAILABLE,” WITHOUT ANY GUARANTEE, CONDITION, OR WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, OR NON-INFRINGEMENT. AS IT RELATES TO ANY CLAIMS ARISING OUT OF THIRD PARTY TECHNOLOGY, LAKEMINE SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2.4 Service Acknowledgement

The Service is designed to identify opportunities to reduce and optimize Databricks and cloud consumption and spend. While Lakemine uses commercially reasonable efforts to identify savings opportunities accurately, given the constantly changing nature of cloud pricing, workload patterns, and platform configurations, Lakemine cannot and does not warrant or guarantee that the Service will identify all possible savings, that any projected or estimated savings will be realized, or that any particular reduction in spend will result. Company understands that realized savings depend on a number of factors solely within Company's control and responsibility, including:

• the accuracy and completeness of the data and access Company provides to the Service;
• Company's decisions on whether and how to act on the recommendations and configurations surfaced by the Service;
• Company's own Databricks and cloud usage patterns, workload design, and commitments;
• changes made by Databricks or any Cloud Provider to pricing, DBU rates, or platform behavior; and
• Company's implementation and maintenance of the changes recommended by the Service.

2.5 Evaluation of the Service

If Company has ordered or is otherwise entitled to an evaluation, free trial, or test of the Service (“Evaluation Service”), the provisions of this Section apply and control over any conflicting terms. Company will have the right to conduct a test of the Evaluation Service for a period not to exceed fourteen (14) days (unless otherwise agreed in writing by Lakemine or earlier terminated under Section 8), during which Company may access and use the Evaluation Service solely for internal evaluation to decide whether to purchase the right to continue using the Service for its Internal Business Use. Evaluation Services are provided gratuitously. Lakemine has no obligation to provide support for Evaluation Services but may do so at its discretion. Company acknowledges that the Evaluation Services may contain errors or defects. CONSEQUENTLY, EVALUATION SERVICES ARE PROVIDED SOLELY ON AN “AS IS, WITH ALL FAULTS” BASIS, AND LAKEMINE DISCLAIMS ALL WARRANTIES, CONDITIONS, AND LIABILITY IN CONNECTION WITH EVALUATION SERVICES. COMPANY ASSUMES ALL RISK OF USE. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED BUT MAY BE LIMITED, THE LIABILITY OF LAKEMINE AND ITS LICENSORS FROM ALL CLAIMS SHALL BE LIMITED TO ONE UNITED STATES DOLLAR (USD $1.00) IN THE AGGREGATE. If Company accesses or uses the Service after expiration of the Evaluation Service, Company agrees to pay for the Service thereafter in accordance with Lakemine's applicable rates and fees, and these Terms of Use shall apply to such extended paid use.

2.6 Ownership; Reservation of Rights

The Service is and remains the exclusive property of Lakemine and its licensors. Except for Company's access and use rights expressly agreed in these Terms of Use and the limited license granted in Section 2.1.2, no license or other rights in the Service or Lakemine's intellectual property are granted to Company. Company acknowledges that the Service and all ideas, methods, algorithms, formulae, processes, and concepts incorporated into it, and all revisions, corrections, modifications, enhancements, releases, upgrades, and derivative works, are the intellectual property of Lakemine or its licensors. Company will not alter or remove Lakemine's or its licensors' copyright notices or proprietary legends from any part of the Service.

2.7 Changes and Improvements to the Service

Lakemine reserves the right, at its discretion and without notice, to continually improve, update, and offer new versions of the Service (including infrastructure, features, functionality, security, technical configurations, and detection engines) during the Term, to reflect changes in laws, regulations, technology, industry practices, cloud pricing models, and patterns of use. Any such change shall be governed by these Terms of Use, shall not be treated as a breach, and shall not give Company a right to a refund of any monies paid or payable hereunder, although Company acknowledges that use of some changes may be contingent on Company's agreement to additional terms.

3. Company Responsibilities

3.1 Cloud and Databricks Account Compliance

It is a condition precedent to any rights granted to Company that Company will comply with all applicable terms and policies of its Cloud Providers, including Databricks, associated with the Cloud Accounts it connects to the Service, and Company is solely responsible for such compliance by itself and its End Users. Lakemine is not responsible for any content or aspect of the services provided to Company by any Cloud Provider, including their selection, availability, reliability, security, and privacy policies.

3.2 Service Setup; Registration; Administrators

Company is responsible for architecting, selecting, configuring, registering, connecting, and securing operation of the Service, as well as maintaining connectivity and access. Company must provide Lakemine with all information reasonably necessary to provision and make available the Service, including an entity name and address, primary contact name and information, an email address, and other information Lakemine may request. Registration information will be treated as Confidential Information of Company but is not Company Data. Company will provide and maintain contact information for its Administrators, who are the only authorized End Users permitted to manage, configure, access, maintain, and support the Service for Company.

3.3 Authentication Credentials

Company has sole control over access to and use of the Service by its End Users and is responsible for all activity (whether authorized or unauthorized) occurring on Company's Service account. Company is responsible for maintaining the confidentiality of any non-public authentication credentials associated with its access to the Service. Company will ensure that all End Users comply with Company's obligations under these Terms of Use. If Company becomes aware of any breach or non-compliance by an End User, Company will immediately terminate that End User's access and notify Lakemine. Company is responsible for the security, protection, loss prevention, and backup of its own systems, Company Data, and other content.

3.4 Internet Transmission

Company understands that no data transmission over the Internet is guaranteed to be secure. Lakemine is not responsible for any interception or interruption of communications through the Internet or through networks or systems outside Lakemine's control. Company is solely responsible for maintaining the security of its networks, servers, applications, and access codes.

3.5 Fees

Company will timely pay to Lakemine the fees set out in the applicable Order (plus any applicable Taxes) for access to and use of the Service in accordance with the ordered Usage Metric. Lakemine offers the following billing models, as selected by Company in the Order:

• Pay as You Save.Company pays no fee up front. Lakemine's fee is calculated as a percentage of the savings audited and verified against Company's actual Databricks invoice, and is invoiced monthly in arrears. Company is billed only on savings that are realized and verified.
• Pay per DBU. Company pays a fixed license fee scaled to active DBU consumption, invoiced on a recurring basis (for example, monthly or annually) as set out in the Order, for predictable, budget-based pricing.

Except as expressly set forth in Sections 8 and 9.1, the fees Company pays for access to and use of the Service are non-refundable and not subject to credit or offset. Undisputed invoices are due within the period stated in the Order. Lakemine reserves the right to change or modify its published fees for the Service at such times as Lakemine determines, and any such change will apply to renewal Terms and to new Orders placed after the change takes effect.

3.6 Taxes

Except as expressly stated to the contrary in the Order, the fees and charges described in the Order do not include any foreign or domestic national, federal, provincial, state, municipal, or local sales, use, VAT, GST, excise, service, or similar transactional taxes (collectively “Taxes”) now or hereafter levied under Applicable Laws. Company will provide Lakemine all information required for the calculation, invoicing, and remittance of applicable Taxes, including Company's correct name, location, and tax identification number where applicable. If Company is legally entitled to a tax exemption, Company is responsible for providing Lakemine with legally sufficient exemption certificates for each taxing jurisdiction. Otherwise, Company will be invoiced for, and pay, all Taxes as required by Applicable Law.

4. Company Data and Content; Optional Features; Data Protection; Privacy

4.1 Responsibility for Company Data; Company Accounts

Company is solely responsible for the content of all Company Data and represents to Lakemine (on an ongoing basis) that Company: (a) to the extent required by Applicable Law, has provided all necessary notices to every third party source of Company Data of the scope and purpose of its use in connection with the Processing of such Company Data by the Service; and (b) has procured and maintains all rights, consents, and approvals from every third party source necessary under Applicable Laws to permit Company to submit Company Data to the Service and to permit Company and Lakemine to Process Company Data without violating Applicable Laws or the rights of any third party. Lakemine does not assume any obligations with respect to Company Data or Company's use of the Service other than as expressly set forth in these Terms of Use (including the Lakemine Privacy Policy) or as required by Applicable Law. With respect to Personal Data, the Parties agree that Company is and remains the Data Controller and Lakemine is the Data Processor.

4.2 Certain Optional Features; Configuration; License to Use Company Data

4.2.1 Right to Use Company Data

Only in accordance with, and to the extent authorized by, Company's Configuration, Company grants Lakemine a limited, non-exclusive, royalty-free, paid-up license to access and use Company Data:

• as necessary for Lakemine to provide the Service, Process Company Data, and provide Support Services;
• to maintain and improve the operation, efficacy, and functionality of Lakemine's software and services, including the Service and its cost optimization engines;
• to identify and analyze consumption and savings patterns in order to continually improve Lakemine's optimization models;
• for administration of these Terms of Use and the Service;
• to comply with its legal obligations under Applicable Laws; and
• for purposes set forth in the Privacy Policy.

Company acknowledges and agrees to Lakemine's use or sharing of aggregated, anonymized, de-identified, or pseudonymized Company Data (such that it no longer identifies Company, any other entity, or any Data Subject) as part of a larger set of statistics or benchmarks, and that such data does not constitute Confidential Information of Company.

4.2.2 Configuration

“Company's Configuration” means the settings, permissions, connection scope, and instructions established by Company (through its Administrators) that govern how the Service connects to and reads from Company's Databricks and Cloud Accounts and how the Service Processes Company Data.

4.3 Processing; Privacy

In accordance with the instructions provided by Company through Company's Configuration, Lakemine may collect, organize, copy, adapt, record, store, retrieve, transfer, disclose by transmission, and use (each a “Process”) Company Data in connection with the Service. Company understands that all or part of the Processing may: (a) entail the transfer of Company Data (which may include Personal Data) outside the country in which the source of such Company Data is located; and (b) take place on servers located in the United States, the European Economic Area, or other jurisdictions. Information about what Lakemine does with, and how it protects, Company Data is set forth in the Privacy Policy and the User Documentation.

4.4 Sub-Processors

Company agrees that Lakemine may share Company Data (including Personal Data) with third parties, including Affiliates of Lakemine and its vendors, suppliers, and infrastructure partners (each a “Sub-processor”), in support of the Processing of Company Data. Lakemine will contractually restrict Sub-processors' access to Company Data to the extent needed for Lakemine's performance and will impose written obligations no less protective of Company Data than those set forth herein. Any subcontract with a Sub-processor shall not relieve Lakemine of its obligations to Company.

5. Support Services

5.1 Support Services

Lakemine will provide Support Services for the Service on the terms and descriptions set forth in the applicable Order or User Documentation, as modified from time to time. Except for the Support Services, these Terms of Use do not require Lakemine to provide Company with any configuration, deployment, training, maintenance, consulting, or other technical assistance. The Service is periodically monitored against service level targets, and adjustments are made by Lakemine as needed.

5.2 Updates to Enabling Software

At its sole discretion, Lakemine may provide periodic updates to the Enabling Software, if any, which may include bug fixes, new features, or enhancements. Company is solely responsible for deploying such updates at its own cost as soon as possible. Lakemine's obligation to provide Support Services depends on Company's prompt installation of all such updates.

6. Confidentiality; Feedback

6.1 Confidentiality; Non-Disclosure

Each Party acknowledges that by reason of its relationship with the other, it may have access to information and materials concerning the other Party's business, technology, or products that is confidential (“Confidential Information”). Written or tangible Confidential Information must be identified and labeled as confidential at the time of disclosure. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of disclosure, with written confirmation within fifteen (15) days. Each Party agrees not to use the other's Confidential Information except as authorized under these Terms of Use, and to protect it at least to the same extent as a reasonable person would protect their own Confidential Information. The restrictions will not apply to information that:

• is already known to the receiving Party at the time of disclosure;
• becomes publicly available through no wrongful act of the receiving Party;
• is independently developed by the receiving Party without benefit of the disclosing Party's Confidential Information;
• has been rightfully received from a third party not under obligation of confidentiality;
• is disclosed in any legal proceeding arising from these Terms of Use; or
• is required to be disclosed by law, provided the compelled Party gives prior written notice (where legally permissible) adequate for the owning Party to seek protective action.

Upon termination, each Party will return or irretrievably destroy the other Party's Confidential Information in its possession. Any prior non-disclosure or confidentiality agreement between the Parties in effect on the Effective Date is merged into and superseded by these Terms of Use only with respect to the subject matter hereof.

6.2 Feedback

Notwithstanding anything to the contrary: (a) Lakemine will have no obligation with respect to any comments, suggestions, or improvements that Company may provide, whether verbal or written (“Service Feedback”); and (b) Lakemine and its Affiliates and licensors are free to use any ideas, concepts, know-how, or techniques contained in Service Feedback for any purpose whatsoever, including developing and marketing products and services, without any restrictions, license fees, royalties, or other consideration.

7. Warranty; Warranty Disclaimers; Limitations and Exclusions from Liability

7.1 Limited Warranty

Lakemine warrants only to Company that the Service will substantially conform to its User Documentation under normal use until the expiration or termination of Company's right to access and use the Service. This limited warranty does not cover events caused by accident, abuse, or use of the Service inconsistent with these Terms of Use, the User Documentation, or other Lakemine guidance, or resulting from Force Majeure. If it is established that Lakemine has breached this warranty after notice from Company, Lakemine may, at its option: (a) use reasonable efforts to cure the breach; or (b) if it cannot, after commercially practicable attempts, achieve that remedy, either Party may terminate these Terms of Use and Lakemine will refund the unused prepaid fees, if any, as of the effective date of termination. To benefit from this warranty, Company must report the alleged breach in writing with reasonable specificity within ten (10) days of its occurrence. The above remedies are Company's sole and exclusive remedy for Lakemine's breach of this warranty.

7.2 Disclaimer of Warranty

EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICE AND SUPPORT SERVICES ARE PROVIDED “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE.” LAKEMINE AND ITS AFFILIATES AND LICENSORS SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, GUARANTEES, CONDITIONS, AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. FURTHER, LAKEMINE DOES NOT REPRESENT OR WARRANT ANY OF THE FOLLOWING:

• THAT THE SERVICE WILL IDENTIFY ALL POSSIBLE COST SAVINGS OR OPTIMIZATION OPPORTUNITIES;
• THAT ANY PROJECTED, ESTIMATED, OR IDENTIFIED SAVINGS WILL BE REALIZED, OR THAT COMPANY WILL ACHIEVE ANY PARTICULAR REDUCTION IN SPEND;
• THAT THE SERVICE WILL BE ENTIRELY SECURE, OPERATE UNINTERRUPTED, BE ERROR FREE OR FAILSAFE, OR THAT COMPANY DATA OR COMPANY'S SYSTEMS WILL NOT BE COMPROMISED OR DAMAGED;
• THAT THE SERVICE RESULTS, RECOMMENDATIONS, REPORTS, OR DATA WILL BE FREE FROM ERRORS OR COMPLY WITH ANY PARTICULAR LAW; OR
• ANY RESULTS THAT COMPANY MAY ACHIEVE OR ANTICIPATE.

7.3 Limitations of Liability

LAKEMINE AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE TO COMPANY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, COSTS OF COVER, OR DENIAL OF ACCESS OR DOWNTIME), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LAKEMINE AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING FROM OR IN CONNECTION WITH:

• COMPANY'S USE OR INABILITY TO ACCESS OR USE THE SERVICE, INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THESE TERMS OF USE, ANY DISCONTINUATION OR MODIFICATION OF THE SERVICE OR SUPPORT SERVICES, OR ANY DOWNTIME OF THE SERVICE OR ANY CLOUD PROVIDER SERVICE FOR ANY REASON, INCLUDING POWER OUTAGES, SYSTEM FAILURES, CLOUD PLATFORM OR INTERNET FAILURES, OR OTHER INTERRUPTIONS;
• ANY ASSERTION THAT THE SERVICE FAILED TO IDENTIFY OR REALIZE ANY OR ALL POSSIBLE COST SAVINGS OR OPTIMIZATION OPPORTUNITIES;
• ANY BUSINESS OR FINANCIAL DECISION COMPANY MAKES IN RELIANCE ON THE SERVICE'S RECOMMENDATIONS, REPORTS, OR ESTIMATES;
• THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
• ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY COMPANY IN CONNECTION WITH THESE TERMS OF USE OR COMPANY'S USE OF THE SERVICE; OR
• ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY COMPANY DATA OR OTHER DATA.

7.4 Maximum Liability; Direct Damages

IN ALL EVENTS, LAKEMINE'S AND ITS SUPPLIERS' AND LICENSORS' LIABILITY TO COMPANY FOR DAMAGES ARISING FROM ALL RELATED AND UNRELATED CAUSES OF ACTION AND CLAIMS OF ANY KIND (WHETHER BASED ON WARRANTY, CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE, OR ANY OTHER THEORY) ARISING FROM OR RELATED TO THESE TERMS OF USE, THE RELATIONSHIP OF THE PARTIES, OR THE PROVISION OF THE SERVICE, UPDATES, AND SUPPORT SERVICES, SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE (AND NOT PER INCIDENT OR PER CLAIMANT), THE TOTAL FEES PAID BY COMPANY FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.

7.5 Exceptions; Unenforceability

NOTWITHSTANDING ANYTHING IN THIS SECTION 7 TO THE CONTRARY, LAKEMINE'S LIABILITY SHALL NOT BE LIMITED IN THE EVENT OF: (a) PERSONAL INJURY OR DEATH ARISING FROM LAKEMINE'S NEGLIGENCE; (b) EVENTS ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LAKEMINE; (c) BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6.1; OR (d) PAYMENT OF MONIES BY LAKEMINE UNDER SECTION 9.1. THE WAIVERS, DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS IN THIS SECTION 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, BUT NOTHING IN THIS SECTION 7 IS INTENDED TO LIMIT LIABILITY TO THE EXTENT THAT DOING SO WOULD BE UNENFORCEABLE UNDER APPLICABLE LAW.

8. Term and Termination

8.1 Term; Auto-Renewal

These Terms of Use and Company's access to the Service become effective as of the date the applicable Order is accepted by Lakemine and the Service is made available to Company, and continue in effect as set forth in the applicable Order and these Terms of Use until the outstanding Order is completed (the “Term”), unless earlier terminated in accordance with this Section. Unless otherwise stated in the Order or prohibited by Applicable Law, Company's rights to access and use the Service will auto-renew upon completion of the then-current Term for a renewal period equal to the preceding Term, unless Company has opted out of auto-renewal in writing before the renewal date. Any renewal Term will be priced at Lakemine's then-current fees for the Service.

8.2 Suspension and Termination by Lakemine

Lakemine may suspend or terminate Company's right to use the Service (in whole or in part) at any time upon written notice if Lakemine determines that:

• Company or one or more of its End Users poses a security risk to the Service or any third party, may adversely impact the Service or any third party, may subject Lakemine or any third party to liability, or may be engaged in fraudulent activity;
• Company is in material breach of these Terms of Use (Company's failure to pay any fees due on a timely basis will be deemed a material breach) or no longer maintains an active Databricks or cloud account required for the Service; or
• Company is in breach of Sections 2.1, 2.2, or 4.1.

Company will cease use of the affected Service during any period of suspension or upon termination. For any termination or suspension by Lakemine under this Section, Lakemine will not provide or be liable for any refund or proration of fees.

8.3 Termination for Convenience by Lakemine

Lakemine may terminate these Terms of Use and the provision of the Service for its convenience (for any reason or no reason) by giving Company at least thirty (30) days' prior written notice (except that Lakemine may immediately terminate for the reasons set forth in Section 9.1.2), and will refund the unused prepaid fees, if any, for the terminated period. Any termination under this Section shall not be treated as a breach and shall not entitle the other Party to any claim for damages arising from such termination.

8.4 Termination by Company

Company may terminate these Terms of Use or its use of the Service for its convenience at any time with written notice to Lakemine, in which event Company will not be entitled to a refund of unused prepaid fees, if any. Only if Company terminates for a material breach by Lakemine (after giving Lakemine at least twenty (20) days' prior written notice and an opportunity to cure during that period) will Company be entitled to a refund of the applicable unused prepaid fees, if any.

8.5 Suspension and Termination by Cloud Providers

Company acknowledges that its Cloud Providers, including Databricks, may suspend or terminate Company's accounts, which will suspend or terminate Company's access to and use of the Service. In such event, Lakemine will not provide or be liable for any refund, including fees prepaid by Company.

8.6 Company's Termination Duties

Upon expiration or termination of these Terms of Use or Company's use of the Service for any reason, Company will: (a) disconnect the Service from Company's Databricks and Cloud Accounts and cease all access and use of the Service; and (b) irretrievably destroy all copies in its possession of any Enabling Software and User Documentation provided by Lakemine. Upon request, Company will certify in writing that the foregoing has occurred. Termination does not relieve Company of its obligation to pay fees and Taxes that remain unpaid.

8.7 Survival

Upon termination or expiration of these Terms of Use, the following Sections shall survive: Sections 1, 2.2, 2.3, 2.4, 2.6, 3, 4, 6, 7, 8, 9, and 10, and any other provision that expressly states that its terms shall survive.

9. Indemnity

9.1 Lakemine Indemnity

9.1.1 IP Indemnity

Lakemine (at its cost) will defend only Company from each IP Claim and indemnify Company from the resulting costs and damages finally awarded against Company that are specifically attributable to such IP Claim, or amounts agreed by Lakemine in a monetary settlement of such IP Claim, subject to the conditions and limitations in this Section 9. This indemnity states Lakemine's exclusive obligation and entire liability, and Company's exclusive remedy, with respect to IP Claims. It is personal to Company and may not be assigned or transferred to any third party.

9.1.2 Mitigation

Should the Service become, or in Lakemine's opinion be likely to become, the subject of an IP Claim, Lakemine may, at its sole option: (a) procure for Company the right to continue using the Service; or (b) modify the Service so that it is no longer the subject of an IP Claim while maintaining substantially the same functionality. If both options are unreasonable in Lakemine's opinion, Lakemine may, on written notice to Company, immediately terminate these Terms of Use and Company's right to use the Service and promptly refund the unused prepaid fees, if any, for the remaining portion of the ordered Term.

9.2 Company Indemnity

Company (at its cost) will defend only Lakemine from each Third Party Claim and indemnify Lakemine from the resulting costs and damages finally awarded against Lakemine that are specifically attributable to such Third Party Claim, or amounts agreed by Company in a monetary settlement of such Third Party Claim, subject to the conditions and limitations in this Section 9. This indemnity states Company's exclusive obligation and entire liability, and Lakemine's exclusive remedy, with respect to Third Party Claims. It is personal to Lakemine and may not be assigned or transferred to any third party.

9.3 Conditions of Indemnification

The indemnification obligations of each indemnitor Party are subject to and conditioned on the indemnitee Party: (a) providing prompt written notice of an IP Claim or Third Party Claim; (b) tendering sole control and authority over the defense, negotiation, litigation, and settlement of the claim to the indemnitor Party; and (c) providing full and timely cooperation and all reasonably requested information and assistance at the indemnitor Party's expense. The indemnitee Party may participate in the defense at its own cost with counsel of its selection. Without the indemnitee Party's consent, the indemnitor Party will not settle any claim in a manner that requires the indemnitee Party to admit liability or pay money. The indemnitor Party is not responsible for any costs, settlement, or compromise incurred by the indemnitee Party without the indemnitor Party's prior written approval.

10. General Provisions

10.1 Assignment

Company will not assign (in whole or in part) these Terms of Use, or delegate or sublicense any of its rights, without Lakemine's prior written consent. Any assignment in violation of this Section will be void. In its sole discretion and without notice, Lakemine may assign these Terms of Use, including to any Lakemine Affiliate. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the Parties and their respective successors and assigns.

10.2 Interpretation

The headings within these Terms of Use are for convenience only and will not affect interpretation. “Include,” “includes,” and “including” shall be interpreted as introducing a list of examples that do not limit the generality of any preceding words.

10.3 No Waivers

The failure by either Party to enforce any provision will not constitute a present or future waiver of that provision or limit the right to enforce it later. To be effective, all waivers must be in writing, specify the provision and actions being waived, and be signed by the Parties.

10.4 Export and Import Control

In connection with these Terms of Use, the access, use, export, or re-export of the Service and related technical data and services (collectively “Controlled Technology”) is subject to Applicable Laws governing the export and import of Controlled Technology by Company and its End Users. Company agrees that it will at all times comply with each Applicable Law that: (a) requires a license for, or otherwise prohibits, the export, re-export, import, diversion, or disclosure of Controlled Technology; (b) prohibits or restricts sale, use, or access to certain technology, goods, or services to specified countries or defined persons; or (c) restricts end-use of Controlled Technology related to the development of nuclear, chemical, or biological weapons, missiles, or other weapons of mass destruction. Company represents and warrants that neither Company nor any of its End Users is under the control of, located in, or a resident or national of any country or region subject to an embargo or applicable trade sanction, and is not a prohibited person or entity as defined in any Applicable Law.

10.5 Governing Law; Venue and Jurisdiction

These Terms of Use and any disputes arising out of or related to them will be governed by and construed in accordance with the laws of the State of New York, USA, and controlling U.S. federal law, excluding conflict of laws principles. These Terms of Use will not be governed by the Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods, the application of each of which is expressly excluded. The Parties irrevocably submit to the sole and exclusive personal jurisdiction of: (a) the United States District Court for the Southern District of New York, located in the County of New York; or, if that court determines it lacks subject matter jurisdiction, (b) the Supreme Court of the State of New York, located in the County of New York.

10.6 Government Agency Use

The Service and accompanying User Documentation have been developed solely at private expense by Lakemine and its suppliers and licensors, consisting of commercially available items and commercially available computer software and documentation. Access and use of the Service by any Government Agency may be subject to mandatory applicable laws; provided that, except for the limited right to access and use the Service granted in Sections 2.1.1 and 2.1.2, no right, title, or interest in any software or service is granted or transferred to any Government Agency. If a Government Agency requires greater or different rights, the Parties will discuss such requirements and the additional fees applicable, and any additional rights must be set out in a specific written agreement. “Government Agency” means a national, federal, provincial, state, municipal, or local agency or entity that orders the right to access and use the Service under these Terms of Use.

10.7 Notices

10.7.1 If to Company

Lakemine may provide any notice to Company under these Terms of Use by: (a) posting a notice on https://lakemine.ai(the “Lakemine Site”); or (b) sending a message to the email address associated with Company's account. Notices provided by posting on the Lakemine Site are effective upon posting, and notices provided by email are effective when sent. It is Company's responsibility to keep its email address current.

10.7.2 If to Lakemine

To give Lakemine notice under these Terms of Use, Company must contact Lakemine: (a) by email to legal@lakemine.ai; or (b) by personal delivery, overnight courier, or registered or certified mail to [Insert Lakemine Registered Address], to the attention of the President, with a copy to the General Counsel. Lakemine may update the email or mailing address for notices by posting a notice on the Lakemine Site. Notices provided by personal delivery are effective immediately. Notices provided by email or overnight courier are effective one business day after they are sent. Notices provided by registered or certified mail are effective three business days after they are sent.

10.8 Severability; Enforcement

The unenforceability or invalidity of any term of these Terms of Use shall not impair the enforceability or validity of any other part. If any term conflicts with the governing law or is held invalid or unenforceable by a court with jurisdiction, the court is requested to modify, amend, or restate the term rather than sever it, so as to give effect to the original intention of the Parties to the greatest lawful extent.

10.9 Force Majeure

If Lakemine's performance of any obligation is affected or prevented by events beyond its control, including war, terrorism, or armed conflict; cyber-attacks, network intrusions, zero-day threats, state-actor hacking, or denial-of-service attacks; telecommunications or internet congestion, slowdown, or outage; failure of hardware or software not within Lakemine's possession and control; or labor strike or boycott, then Lakemine will be excused from such performance, provided that Lakemine: (a) provides prompt written notice of the event and its expected duration; (b) takes reasonable steps to mitigate its effects; and (c) resumes performance promptly following removal of the interfering event. Any such delay or failure shall not constitute a breach of these Terms of Use by Lakemine.

10.10 Independent Contractors

Nothing in these Terms of Use creates any agency, partnership, or joint venture relationship between the Parties. The Parties are independent contractors and have no fiduciary duty to one another. Neither Party has authority to act as agent for, or incur obligations on behalf of, the other.

10.11 Third Party Beneficiaries

All disclaimers, limitations of damages and remedies, and exclusions of liability in these Terms of Use that apply to Lakemine also extend to and apply in respect of Lakemine's Affiliates, suppliers, and licensors as third party beneficiaries. Except as set forth in the preceding sentence, these Terms of Use are entered into solely for the benefit of, and may be enforced only by, the Parties, and no third party shall have any right or benefit hereunder.