U.S. Government Amendment To Snowflake Provider and Consumer Terms

This is an archived version of our U.S. Government Amendment To Snowflake Provider and Consumer Terms dated October 9, 2023. View the current version here.

This U.S. Government Amendment (this “U.S. Government Amendment”) to the Snowflake Provider and Consumer Terms (as updated from time to time, the “Terms”) by and between Snowflake Inc. (“Snowflake”) and the U.S. Governmental Entity accepting the Terms and this U.S. Government Amendment (“Listing Participant”) is effective as of the Effective Date of the Terms. Unless otherwise defined in this U.S. Government Amendment, all capitalized terms used herein will have the meanings ascribed to them in the Terms. The parties agree as follows:

1. CUSTOMER AGREEMENT. Listing Participant understands and agrees that use of the Listing Functionality as a Listing Consumer and/or Listing Provider is contingent upon there being a valid Customer Agreement in effect throughout its use of the Listing Functionality as a Listing Consumer and/or Listing Provider.
2. INTRODUCTION. Section 1.5 (Introduction) of the Terms is hereby deleted in its entirety and replaced with the following:

   “1.5. These Terms are enforceable like any written agreement signed by Listing Participant and Snowflake. By indicating acceptance of these Terms or engaging in Transactions, Listing Participant is accepting all the terms and conditions of these Terms on behalf of the Listing Participant’s entity or ordering activity and not in his or her own individual capacity.”

3. FEES AND PAYMENTS.
   1. Section 5.4 (Payments) of the Terms is hereby deleted in its entirety and replaced with the following:

      “5.4. Payments. All payments made under these Terms to Snowflake as the Invoicing Party will be made in U.S. dollars to an account designated by Snowflake, or such other payment method mutually agreed upon by the Parties, and will be non-refundable. To the extent there are any payment disputes (including any refund requests or other payment requests) between Listing Participant and a Listing Provider, any settlements of such disputes must be agreed upon directly between Listing Participant and the Listing Provider. In the event of a dispute between Listing Participant and a Listing Provider, Listing Participant reserves all rights and remedies under the Terms, the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation. Listing Participant represents and warrants that Listing Participant has the right to use any payment method that Listing Participant submits in connection with a Transaction. Any disputed amounts due to Snowflake by Listing Participant will be resolved under the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation.”

   2. Section 5.7 (No Set-Off) of the Terms is hereby deleted in its entirety and replaced with the following:

      “5.7. No Set-Off. [RESERVED].”

   3. Section 5.8 (Taxes) of the Terms is hereby deleted in its entirety and replaced with the following:

      “5.8. TAXES. [RESERVED].”

4. TERMS AND TERMINATION. Section 10.5 (Effect of Termination) of the Terms is hereby deleted in its entirety and replaced with the following:

   “10.5. Effect of Termination. Upon termination of these Terms:
   (a) With respect to Listing Participant’s use of the Listing Functionality as a Listing Provider: Listing Participant will stop using the Listing Functionality to share any Listing Information with Listing Consumers. Further, Listing Participant will allow Listing Consumers who are accessing or using its Listing Provider Materials to continue to access and use the Listing Provider Materials either (i) until the expiration or termination of the Product Agreement, or (ii) as described under the Listing Provider Policies in connection with the “dropping of a share.” The end of this time period will be the “Effective Termination Date.” No termination will entitle Listing Participant to any refund or affect Listing Participant’s obligation to pay all Fees or affect Snowflake’s obligation to pay Listing Participant’s Net Payment (subject to Section 1.3 (Fees and Reports) of Exhibit A (Monetization Offering Terms)) that may have become due or otherwise accrued through the Effective Termination Date. Any disputes related to the U.S. Government Amendment and the Terms will be resolved under the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation.”
   (b) With respect to Listing Participant’s use of the Listing Functionality as a Listing Consumer: (i) Snowflake may limit, suspend, or terminate Listing Participant’s abilities to access and use the Listing Functionality, including the abilities to access, use, and, if applicable, purchase Listing Provider Materials, as set forth in Section 4.6 (Access to Listing Provider Materials); and (ii) Listing Participant will, and will ensure its Authorized Users, promptly cease all use of the Listing Functionality. Snowflake will have no liability to Listing Participant for any limitation, termination, or suspension of access to or use of the Listing Functionality, nor will limitation, termination, or suspension of such access or use: (i) limit any other rights or remedies Snowflake may have; (ii) entitle Listing Participant to any refund; or (iii) affect Listing Participant’s obligation to pay all Product Costs and Taxes due or otherwise accrued through the date of limitation, suspension, or termination. Any disputes related to the U.S. Government Amendment and the Terms will be resolved under the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation.”

5. INDEMNIFICATION. Section 12 (Indemnification) of the Terms is hereby deleted in its entirety and replaced with the following:

   “12. INDEMNIFICATION AND REPRESENTATIONS.
   12.1. Indemnification by Snowflake. Snowflake will defend Listing Participant against any claim by a third party alleging that the Listing Functionality, when used in accordance with these Terms and Supplemental Documentation, infringes any intellectual property right of such third party and will indemnify Listing Participant for any damages and costs finally awarded against Listing Participant or agreed in settlement by Snowflake (including reasonable attorneys’ fees) resulting from such claim. The foregoing obligations of Snowflake will not apply to the extent the applicable claim is directly attributable to: (i) Listing Participant’s gross negligence or willful misconduct; or (ii) infringement of intellectual property by any materials not provided by Snowflake (including any Listing Provider Materials), either alone or in combination with the Listing Functionality.
   12.2. Representations by Listing Participant. Where Listing Participant is using the Listing Functionality as a Listing Provider, Listing Participant agrees that it is solely responsible for all risks arising from or relating to any of its Listing Provider Materials and hereby represents and warrants that any of its Listing Provider Materials will not (i) violate these Terms, inclusive of the U.S. Government Amendment, or applicable law, (ii) infringe or misappropriate any third party rights, or (iii) cause harm to any third party or Snowflake.
   12.3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 12, Listing Participant (the “Indemnified Party”) will: (i) promptly notify Snowflake (the “Indemnifying Party”) in writing of the claim; (ii) allow the Indemnifying Party the right to control the investigation, defense, and settlement (if applicable) of such claim at the Indemnifying Party’s sole cost and expense; and (iii) upon request of the Indemnifying Party, provide all necessary cooperation at the Indemnifying Party’s expense. Failure by the Indemnified Party to notify the Indemnifying Party of a claim under this Section 12 shall not relieve the Indemnifying Party of its obligations under this Section 12. However, the Indemnifying Party shall not be liable for any litigation expenses that the Indemnified Party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the Indemnifying Party in accordance with this Section 12. The Indemnifying Party may not settle any claim that would bind the Indemnified Party to any obligation (other than payment covered by the Indemnifying Party or ceasing to use infringing materials) or require any admission of fault by the Indemnified Party, without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any indemnification obligation under this Section 12 will not apply if the Indemnified Party settles or makes any admission with respect to a claim without the Indemnifying Party’s prior written consent. In the event of a dispute between Snowflake and Listing Participant under this Section 12, Listing Participant reserves all rights and remedies under the Terms, the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation.”

6. WARRANTY AND DISCLAIMER. Section 13 (Warranty and Disclaimer) of the Terms is hereby deleted in its entirety and replaced with the following:

   “13. WARRANTY AND DISCLAIMER. Subject to Section 11 (Previews), Snowflake warrants that the Listing Functionality will work in substantial conformity with the Supplemental Documentation. Except as expressly set forth in these Terms and without limiting any provisions in any other agreement, the Listing Functionality is provided to Listing Providers, Listing Consumers, and Listing Participant on an as-is and as-available basis and, except as set forth in the immediately preceding sentence, Snowflake makes no representations or warranties of any kind, implied or expressed, with respect to the Listing Functionality, including warranties of title or non-infringement, which are disclaimed. Snowflake does not represent or warrant that the use of the Listing Functionality will be uninterrupted or error-free. Although Snowflake attempts to make use of the Listing Functionality safe, subject to Section 4.5 (Snowflake as Listing Provider), Snowflake cannot and does not represent or warrant that Listing Provider Materials offered using the Listing Functionality are free of harmful content or materials. Notwithstanding the foregoing, in the event of a dispute between Snowflake and Listing Participant under this Section 13, Listing Participant reserves all rights and remedies under the Terms, the Contract Disputes Act, 41 U.S.C. 4101-7109, or other applicable law or regulation.”

7. LIMITATIONS OF LIABILITY. Section 14 (Limitations of Liability) of the Terms is hereby deleted in its entirety and replaced with the following:

   “14. LIMITATIONS OF LIABILITY. Except with respect to Excluded Claims, to the maximum extent permitted by applicable law, and notwithstanding any other provision of these Terms:
   14.1. Exclusion of Damages. In no event will either Party be liable to the other Party or any third party for any incidental, special, exemplary, punitive, or consequential damages, including loss of income, data, profits, revenue, or business interruption, or the cost of substitute services or other economic loss, arising out of or in connection with these Terms, whether such liability arises from any claim based on contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not such party has been advised of the possibility of such loss or damage.
   14.2. Total Liability. In no event will either Party’s total liability to the other Party or any third party for all claims in the aggregate (for damages or liability of any type) in connection with these Terms exceed $50,000 (USD).”

8. GENERAL TERMS.
   1. Section 15.1 (Assignment) of the Terms is hereby deleted in its entirety and replaced with the following:

      “15.1. Assignment. Snowflake may, in accordance with FAR § 42.12, assign this Agreement to any Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Listing Participant may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Snowflake’s prior written consent (not to be unreasonably withheld). Subject to the foregoing, these Terms will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.”

   2. Section 15.6 (Governing Law, Jurisdiction, and Venue) of the Terms is hereby deleted in its entirety and replaced with the following:

      “15.6. Governing Law, Jurisdiction, and Venue. Where Listing Participant is a U.S. federal entity, these Terms will be governed by federal law and where Listing Participant is a U.S. state entity, these Terms will be governed by the applicable U.S. state law.”

9. DEFINED TERMS. Section 16 (Defined Terms) of the Terms is hereby modified as follows:
   1. Section 16.8 (Customer Agreement) is hereby deleted in its entirety and replaced with the following:

      “16.8. “Customer Agreement” means that separate written software-as-a-service or cloud agreement governing the Service between Listing Participant and Snowflake, one of Snowflake Affiliates, or an authorized Snowflake Reseller.”

   2. A new Section 16.48 (Snowflake Reseller) is added as follows:

      “16.48. “Snowflake Reseller” means a distributor or reseller authorized to resell the Service to U.S. Governmental Entities.”

10. MONETIZATION OFFERING TERMS.
    1. Section 1.3.2 (Right to Offset Payment) of Exhibit A (Monetization Offering Terms) to the Terms is hereby deleted in its entirety and replaced with the following:

       “1.3.2. Right to Offset Payment. [RESERVED].”

    2. Section 1.4 (Taxes) of Exhibit A (Monetization Offering Terms) to the Terms is hereby deleted in its entirety and replaced with the following:

       “1.4. Taxes. [RESERVED].”