Hasura, Inc.: MASTER SOFTWARE AND SERVICES LICENSE AGREEMENT

Certain Definitions

General Terms and Conditions

• Reseller Order Forms; Subscriptions; Delivery.

  1. Reseller Order Forms; Subscriptions. The Licensed Software are licensed pursuant to Subscriptions. A Subscription includes access to currently supported versions of the Licensed Software for the term of the Subscription. Licensor’s version support and long-term support policies for the Licensed Software are set forth at https://hasura.io/docs/latest/policies/versioning/ which may be amended by Hasura from time to time. During the Term of this Agreement, and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Subscriptions through a Reseller by agreeing to a Reseller Order Form between a valid Reseller and the Licensee that reference this Agreement. Subscriptions will be for the term agreed to in an applicable Reseller Order Form. The Subscription models (whether Cloud Edition or On-Premise) and the various types of Subscription offered by Licensor may be found at https://hasura.io/products/ and https://hasura.io/pricing/. Additional terms and conditions applicable to Cloud Edition Subscriptions are set out in Exhibit A attached thereto. Each Reseller Order Form shall constitute an agreement separate and distinct from this Agreement, and from any other Reseller Order Form. In the event of any conflict between this Agreement and the Reseller Order Form, this Agreement shall take precedence. For the avoidance of doubt, to the extent that the Reseller Order Form includes any additional or different terms or conditions intended to bind Licensor which are in addition to or different than the terms and conditions of this Agreement, such additional or different terms shall be of no effect or in any way binding upon Licensor.
  2. Delivery Unless otherwise agreed to, all Licensed Software licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (by giving Licensee access to such Licensed Software). In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.

• Term and Termination.

  1. Term of Agreement. Unless terminated earlier pursuant to this Section 2, this Agreement shall continue in force for the term of the Subscription as set forth in the applicable Reseller Order Form.
  2. Term of Reseller Order Forms. Reseller Order Forms issued under this Agreement shall begin and end as specified in each such Reseller Order Form.
  3. Termination. This Agreement may be terminated by either party upon notice if the other party (a) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (b) ceases to function as a going concern or to conduct operations in the normal course of business, or (c) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. In addition, this Agreement and any Order may be terminated by Licensor: (a) upon Licensors reasonable determination that Licensee’s use of the Licensed Software violates any applicable law or regulation; or (b) in the case of Cloud Edition Subscription, upon Licensor’s reasonable determination that Licensee’s use of the Licensed Software poses a threat to the secure or reliable provision of services to other customers, or to the Licensor Cloud Platform/Services, or to the data contained therein. Notwithstanding any provision of this Agreement or any Reseller Order Form to the contrary, any termination of this Agreement pursuant to this Section 2.3 will immediately terminate any Subscription purchased by Licensee pursuant to a Reseller Order Form.
  4. Effect of Termination. Upon termination of this Agreement or any Reseller Order Form, Licensee shall immediately uninstall or destroy (or at the sole option of Licensor, return) all copies of the Licensed Software in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Licensor that the Licensee has complied with such obligation. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
  5. Survival. Sections 2.4-2.6, 3, 4.2, 4.4, 9, 10, 11, 12, 14 and 15, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement.
  6. Termination Not Exclusive Remedy. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether the non-breaching party terminates this Agreement for breach by the other party.

• Ownership of Intellectual Property.

  1. Ownership by Licensor. The Licensed Software contain proprietary and confidential information of Licensor and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know how and trade secrets in and to that party’s respective products and services. Licensor retains all right, title and interest in and to any intellectual property created by Licensor while providing the Licensed Software and/or any Licensor Cloud Platform/Services under this Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Licensee or any third party relating to the Licensed Software, which are hereby assigned to Licensor. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Licensor’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Licensed Software, except as expressly authorized by this Agreement, is prohibited.
  2. Ownership by Licensee. Except to the extent licenses are expressly granted hereunder, Licensee retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (a) Licensee Products and Services; and (b) the Licensee Data.

• License Grants; Restrictions.

  1. License Grant to Licensor Proprietary Code. Subject to and in consideration of Licensee’s compliance with the terms and conditions of this Agreement:
     1. In the case of an On-Premise Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Reseller Order Form, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to:
        1. install, copy, configure and use the Licensor Proprietary Code in connection with Licensee Products and Services provided by Licensee to Licensee’s Customers; and
        2. sell, resell, license, or sub-license the software generated by the Licensor Proprietary Code to Licensee’s Customers as part of Licensee Products and Services provided by Licensee to Licensee’s Customers.
     2. In the case of a Cloud Edition Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Reseller Order Form, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to:
        1. use the Licensor Proprietary Code solely via the Licensor Cloud Platform/Services provided to Licensee by Licensor; and
        2. use the Documentation, training materials or other materials supplied by Licensor to enable such licensed rights.
  2. License Grant to Components of the Licensed Software Licensed Under an Open-Source Software License. Any software code contained in the Licensed Software which is licensed under an Open-Source Software License will be licensed to Licensee under the terms and conditions of the license applicable to such software code, including license terms or conditions included in source code headers, “license” or “copying” file, or the like that may be associated with the software code. In each such case, Licensee’s licensed rights to such software code are determined by the applicable Open-Source Software License, not this Agreement. Licensor does not seek to restrict, or receive compensation for, the act of copying or redistributing publicly licensed code which is otherwise freely redistributable to third parties (and not otherwise restricted by federal trademark or other laws). To the extent the terms of the licenses applicable to components subject to an Open-Source Software License require Licensor to make an offer to provide source code or related information in connection with such components, such offer is hereby made. Any request for source code or related information should be directed only to [email protected].
  3. Copies. In the case of On-Premise Subscriptions, Licensee shall be entitled to make such back-up copies (“Backup Copies”) of the Licensed Software as shall be consistent with its usual policies for backup of its internal data. Any such Backup Copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the License Materials. Backup Copies shall at no time be stored in a manner enabling them to be directly executed.
  4. Restrictions. Licensee shall not remove, alter or obscure any of Licensor’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Licensor’s (or its licensors’) ownership or contribution from the Licensed Software. Additionally, Licensee agrees to reproduce and include Licensor’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Software, or on any portion thereof, including reproduction of the copyright notice. Licensee further agrees that it (and its Customers) will not without express written permission of Licensor: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Licensed Software; (b) make the Licensed Software available to, or use the Licensed Software for the benefit of, anyone other than Licensee or Licensee’s Customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Licensed Software, or include any Licensed Software in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Licensed Software in a way that circumvents a contractual usage limit; (e) copy the Licensed Software or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; (f) frame or mirror any part of the services, other than framing on Licensee’s own intranets or otherwise for its own internal business purpose; or (g) access or use any Licensed Software in order to build a competitive product or service. Licensee further agrees to not exceed any usage allotment (whether compute or data usage, restrictions on the number of permitted models, databases or other similar restriction) paid for by Licensee in connection with the types of Subscription purchased by Licensee, and Licensee acknowledges that exceeding such allotment could result in Licensee being responsible for additional fees and could cause service disruption. Licensee agrees to pay the additional fees related to any such additional usage.
     
     In addition, with respect to Cloud Edition Subscriptions, Licensee agrees that it (and its Customers) will not (a) access the services for or upload to the Licensor Cloud Platform/Services anything unlawful, misleading, malicious or discriminatory; (b) work around any technical limitations in the Licensor Cloud Platform/Services, use any tool to enable features or functionality that are otherwise disabled in the Licensor Cloud Platform/Services; (c) perform or attempt to perform any actions that would interfere with the proper working of the Licensor Cloud Platform/Services, prevent access to or use of the Licensor Cloud Platform/Services by Licensor’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests); (d) upload or transmit to the Licensor Cloud Platform/Services any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Licensor Cloud Platform/Services; (e) access or attempt to access any accounts or data on the Licensor Cloud Platform/Services, other than those explicitly belonging to Licensee or provided by Licensor for Licensee’s use or (f) use the Licensor Cloud Platform/Services to “mine” bitcoins or other cryptocurrencies.
  5. License Grant by Licensee. Licensee grants to Licensor a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, license to store, record, transmit, maintain, reproduce, modify, adapt and perform Licensee Data solely as reasonably required to operate and provide the Licensed Software and the Licensor Cloud Platform/Services pursuant to this Agreement (including, without limitation, Support). In addition, and despite anything to the contrary in this Agreement, Licensor shall have the right to collect and analyze Licensee Data and other information relating to the provision, use and performance of various aspects of the Licensed Software, the Licensor Cloud Platform/Services and related systems and technologies, and Licensor shall have the right to store and use such information and data (solely in aggregated and/or anonymized form in connection such that no individual may be identified from such data and such anonymized and/or aggregated data shall be Licensor’s sole intellectual property) for any of Licensor’s business purposes during or after the term of this Agreement.

• Registration; Accessing the Licensed Software; Licensee Responsibilities.

  1. Access and Credentials. To access the Licensed Software, Licensee may be asked to register and provide Licensor with certain information (such as identification or contact details) as part of the registration process. Licensee shall provide accurate, current and complete information required to enable access to the Licensed Software. Once registered, if applicable, Licensee will be issued certain access credentials to access the Licensor Cloud Platform/Services. Licensee will maintain the accuracy of such information during the use of the Licensed Software.
  2. Licensee Responsibilities. Licensee shall maintain proper password security, and to maintain the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of (i) any person acting on Licensee’s behalf, (ii) anybody accessing the Licensor Cloud Platform/Services using the credentials of any Licensee, to the extent that such other individual did not gain access to the credentials due to an action or inaction of Licensor. In addition, in connection with Licensee’s purchase of a On-Premise Subscription, in the event that Licensee disables or otherwise restricts the automatic telemetry reporting function of the Licensed Software which collects and reports telemetry information to Licensor, Licensee agrees to manually provide such telemetry reports (via email to the email provided by Licensor for such purpose) to Licensor on a calendar monthly basis (no later than seven (7) days of the end of the applicable month) utilizing the Licensed Software reporting function.

• Fees; Payments.

  1. Fees; Invoicing and Payment; Discrepancies. Licensee shall issue purchase orders to the Reseller and pay to the Reseller the fees for the purchase of Subscriptions set forth in the applicable Reseller Order Form. In the case of non-payment of any undisputed fees, Licensor may, at its sole discretion:
     1. suspend Licensee’s access to the Licensed Software;
     2. terminate this Agreement; or
     3. continue to provide the Licensed Software, for a period solely determined by Licensor, in anticipation of full and prompt payment by Licensee.

• Warranties; Disclaimer.

  1. Licensor’s Warranty. Subject to each of the other provisions of this Agreement, Licensor warrants, solely to Licensee, that: (a) it will not knowingly include in the Licensed Software Delivered to Licensee hereunder any computer code or other computer instructions, devices or techniques (including without limitation those known as disabling devices, Trojans, or time bombs) that are intentionally designed to disrupt, disable, or damage the operation of a network, computer program or computer system or any component thereof, and (b) for a period of 60 days after the Licensed Software is initially Delivered to Licensee (the “Warranty Period”), the Licensed Software, when installed properly, will be capable of functioning substantially in accordance with the Specifications.
  2. Warranty Limitations. The warranty provided in Section 7.1 will not apply if: (i) Licensee fails to notify Licensor in writing during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Licensed Software made available at no charge to Licensee during the Warranty Period.
  3. Warranty Remedies. If Licensor breaches the warranty set forth in Section 7.1, Licensee’s sole and exclusive remedy, and Licensor’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Licensor, Licensor will at its expense, use commercially reasonable efforts to eitherrepair or replace the defective Licensed Software to enable it to perform substantially in accordance with the Specifications.
  4. Licensee’s Warranties. Licensee represents and warrants that Licensee owns all Licensee Data or Licensee has all rights that are necessary to grant Licensor the licensed rights in Licensee Data under this Agreement. Licensee also represents and warrants that neither Licensee Data, nor the inclusion of Licensee Data in the Licensed Software, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
  5. DISCLAIMER. EXCEPT AS MAY BE OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES, AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE AND/OR THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH LICENSED SOFTWARE AND/OR THE LICENSOR CLOUD PLATFORM/SERVICES WILL SUCCEED IN RESOLVING ANY PROBLEM.

• Indemnities.

  1. Indemnification by Licensor. Subject to each of the other provisions of this Agreement, Licensor (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that the Licensor Proprietary Software infringes as of the date of Delivery the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.
  2. Exceptions. Licensor shall have no liability to Licensee under this Section:
     1. to the extent any Claim is based on or arises from any Licensed Software or any portion or component thereof, that is:
        1. not provided directly to Licensee by Licensor;
        2. modified by a party other than Licensor and not at Licensor’s direction, if the alleged infringement would not have occurred in the absence of such modification; or
        3. combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;
     2. to the extent Licensee continues allegedly infringing activity after:
        1. being notified thereof; and
        2. being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or
     3. from any breach of the Licensee’s obligations under this Agreement.
  3. Indemnification by Licensee. Licensee will defend and indemnify Licensor from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) incurred in any claim, demand, litigation, suit, proceeding, judgment or other legal or regulatory action arising out of or relating to (a) the intellectual property rights or privacy rights in any of the Licensee Data; (b) the violation by Licensee in connection with the Licensed Software of any consumer protection or privacy laws; and (c) Licensee’ use of the Licensed Software (other than claims for infringement under Section 8.1).
  4. Indemnification Requirements. Despite any of the foregoing, each party’s obligations under Section 8 shall be valid only if the party requesting indemnification: (a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same; (b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and (c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.
  5. Additional Remedies. In the event of any alleged Intellectual Property infringement, Licensor shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Licensed Software; (b) make such alterations, modifications, or adjustments to the Licensed Software so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Licensed Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
  6. Sole and Exclusive Remedies. This Section 8 sets forth Licensee’s sole and exclusive remedy, and Licensor’s sole obligation, for a third-party claim that the Licensed Software, Documentation or Licensor Cloud Platform/Services provided hereunder infringe or misappropriate a third party’s intellectual property rights.

• Limitation of Liability.

  1. Limitation on Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, AND SUBJECT TO SECTION 9.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. Prohibition on Certain Damages. EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL OR PUNITIVE DAMAGES, FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR (EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER) FOR ANY LOST PROFITS OR LOST REVENUE, IN EACH WHETHER SUCH DAMAGES ARE CHARACTERIZED AS INDIRECT OR OTHER, AND WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  3. Maximum Liability. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT WITH RESPECT TO CLAIMS (A) BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER OR (B) LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT SHALL EITHER PARYT’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER.

• Confidentiality.

  1. Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. To qualify as Confidential Information, the disclosing party must conspicuously mark the Confidential Information in tangible form as “confidential,” “proprietary” or similar words generally understood to communicate the confidential nature of the information. Where it is not possible to use such marking, or when the information is disclosed orally or visually, the disclosing party must state at the time of disclosure that the information is Confidential Information, and when requested by the receiving party, summarize in writing the Confidential Information within a reasonable time of such request, describing the disclosure in sufficient detail. Despite the foregoing, the Licensed Software and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information whether or not so marked.
  2. Exceptions. Despite all of the foregoing, Confidential Information will not include any information which:
     1. is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement);
     2. is or becomes generally available to the public through no fault of the receiving party;
     3. is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction;
     4. is disclosed by the receiving party with the disclosing party’s approval; or
     5. is independently developed by the receiving party without any use of the other party’s Confidential Information.
  3. Required Disclosures. If a party is ordered to disclose Confidential Information by judicial or governmental authorities, then the receiving Party shall use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.
  4. Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).

• Import and Export Regulations; U.S Government Provisions.

  The Licensed Software may be subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee may not remove or export from the United States or allow the export or re-export of Licensed Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

• Privacy and Security.

  Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with this Agreement, including, without limitation, all laws regarding the transmission of technical data exported from the United States and all applicable privacy laws. Licensor will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of personal data. Despite the foregoing, in connection with Cloud Edition Subscriptions, Licensee acknowledges that the storage and processing of data, and the assurances published by Amazon (including Amazon Web Services), Google Cloud Platform and other of Licensor’s processor platforms meet the requirements of this Section.

• Certain Terms Applicable to Free/Non-Paid Subscriptions.

  1. No Warranties or Indemnities. Despite any other provision of this Agreement, including but not limited to Sections 7.1 and 8.1, any Software provided to Licensee pursuant to a free/non-paid Subscription is licensed as-is, with no warranties or indemnities of any kind.
  2. Right to Terminate. In addition to the other provisions of Section 2.3, in the case of a free/non-paid Subscription, either party may terminate this Agreement, or any license granted under this Agreement, at any time by giving the other party written notice of termination.
  3. Limitation of Liability. Despite any other provision of this Agreement, including but limited to Section 9, in the case of a free/non-paid Subscription, Licensor’s aggregate liability for damages under this Agreement shall not exceed U.S. $100.00.

• Dispute Resolution.

  1. Negotiation. In the event a dispute arises between Licensee and Licensor regarding the application or interpretation of any provision of this Agreement, the aggrieved Party shall promptly notify the other Party of the dispute. If the Parties fail to resolve the dispute within ten (10) business days after receipt of such notice, each Party shall, within five (5) business days thereafter, escalate such dispute to a member of its senior management team.
  2. Mediation. If a settlement is not achieved within ten (10) business days after a meeting between senior management representatives, then the Parties agree to attempt to resolve the dispute through mediation by submitting the dispute to mediation in accordance with the then current rules for mediation promulgated by the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protections which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. The mediation proceedings shall be held in Palo Alto, California. and each Party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of AAA. Such mediation will be held within thirty (30) business days of submission to AAA.
  3. Binding Arbitration. If the dispute is not resolved by mediation, then the Parties agree to resolve the dispute by binding arbitration before one arbitrator administered in accordance with the Commercial Arbitration Rules of the AAA including the Optional Rules for Emergency Measures of Protections, which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. Arbitration shall be held in Palo Alto, California or such other place as the Parties may agree and shall include an award of attorneys’ fees (and the amount of such fees) to the prevailing Party. The Parties shall agree on the selection of the arbitrator. Discovery shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents. In allowing discovery, the arbitrator shall be governed by the Federal Rules of Civil Procedure then in effect in defining the scope and direction of such discovery and the admissibility of evidence. The arbitrator shall be required to make written findings of fact and render written opinions of law. Subject to the limitations set forth in Section 9 above, any award of damages pursuant to such arbitration shall be included in a written decision signed by the arbitrator which shall state the reasons upon which the award was based, including all the elements involved in the calculation of any award of damages. The arbitrator’s award shall be final and binding, and judgment thereon may be entered in any court having jurisdiction over the Party against which enforcement is sought; provided that any such award rendered by the arbitrator shall be strictly in conformance to and in accordance with the terms and conditions of this Agreement including, without limitation, the limitation of liability provisions contained herein. Other than those matters involving injunctive relief as a remedy or any action necessary to enforce the award of the arbitrator, the Parties agree that the provisions of this Section 14.3 are a complete defense to any suit, action or other proceedings instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising under or relating to this Master Agreement. Nothing in this Section 14.3 shall prevent either Party from exercising its rights to terminate this Master Agreement as specified herein. The Parties undertake and agree that all arbitral proceedings conducted under this Section 14.3 shall be kept confidential, and all information, documentation, and materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.

• Miscellaneous.

  1. Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
  2. Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time.
  3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
  4. Assignment and Sublicensing. Either may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Licensor as determined in Licensor’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.
  5. Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
  6. Governing Law; Venue. This Agreement will be governed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any actions not subject to Dispute Resolution provisions as set forth in Section 14. The rights and obligations of the Parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on purchase orders for the international sale of goods.
  7. Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
  8. Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
  9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
  10. Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
  11. Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits, because of an event wholly beyond its control, including without limitation an electronic incident, fire, pandemic or epidemic illness, natural disaster, and an action or decree of a governmental body, to the extent that such events, or the results or consequences thereof, could not reasonably have been foreseen, prevented, avoided, or mitigated by such Party through the use of technology or practices common and prevalent in the industry (each, a “Force Majeure Event”), the Party who has been so affected shall immediately give written notice to the other Party and use reasonable efforts to resume performance. Upon receipt of such notice, performance of the affected obligations under this Agreement, to the extent affected by the Force Majeure Event, shall be temporarily suspended for the duration of the Force Majeure Event. If the period of nonperformance exceeds ninety (90) days from the receipt of such notice, the Party whose ability to perform has not been so affected may, by giving written notice, terminate this Master Agreement. A delay in delivery due to a Force Majeure Event shall automatically extend the delivery date for a period equal to the duration of such Force Majeure Event. Any warranty period affected by a Force Majeure Event shall likewise be extended for a period equal to the duration of such Force Majeure Event.
  12. U.S. Government Rights. The Licensed Software are commercial products that were developed at private expense by Licensor. The Licensed Software are “commercial items” as that term is defined at FAR 2.101. If Customer or a Registered Authorized User is a U.S. Federal Government (Government) Executive Agency (as defined in FAR 2.101), Licensor provides the Licensed Software, including any related software, technology, technical data, and/or services, in accordance with this Section 15.12. If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, except under any GSA schedule contract, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section 15.12, it must negotiate with Licensor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section 15.7 is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
  13. Audit Rights. For the Term of the Agreement and for a period of two (2) years after termination or expiration of the Agreement, Licensor will have the right, once per calendar year and with reasonable notice to Licensee, to have Licensee’s records inspected and audited to verify compliance with the license restrictions and payment terms of this Agreement. Any such audit will take place during normal business hours and will be conducted in accordance with applicable government requirements, if any. Licensor will pay for the audit, unless the audit discovers an underpayment of five percent (5%) or greater, in which case Licensee will pay for the audit. Licensee agrees to pay any underpayment to Licensor within thirty (30) days of receiving notice of the underpayment.
  14. Self-Reporting for On-Prem Subscriptions; Payment for Excess Usage. With regard to any On-Prem Subscription, no later than 15 calendar days after the end of each calendar quarter during the Term (and after the Term with respect to the final Licensee Usage Report), Licensee shall deliver to Licensor: (a) the usage report generated by licensee through the Licensor console or a similar report in writing and certified by an authorized agent of Licensee (the “Licensee Usage Report”) stating the actual number of Models utilized by Licensee during the just-ended calendar quarter (the “Reporting Period”); and (b) if the number of Models utilized by Licensee for such Reporting Period exceeds the number of Models initially purchased by Licensee for the applicable Subscription term, then in addition an amended or additional purchase order for the incremental additional Models. With regard to Cloud Edition Subscriptions, the same methodology shall be applied except that the Licensor shall determine whether the Customer’s usage has exceeded the number of Models purchased by Customer based on Licensee’s usage data as collected by Licensor from Licensee’s use of the Cloud Edition Subscription. In either the case of Cloud Edition or On-Premise Subscription, if the actual number of Models utilized by Licensee for the applicable Reporting Period, or applicable term, as the case may be, exceeds the number of Models purchased by Licensee for the applicable Subscription term, then the fees will be adjusted accordingly, and Licensee shall pay Licensor the adjusted balance based on Licensor’s properly issued invoice. The additional fee will be pro-rated based on the number of months left in the applicable Subscription term. Notwithstanding any other provision of this Agreement, the Parties acknowledge and agree that no fee adjustment will be made for any lower usage of Models than the number of Models purchased by the Licensee and the Licensee is not entitled to any refund or credit of fees based on such lower usage. For each Licensee Usage Report, Licensee represents and warrants that such report is an accurate representation of usage of Models for the given Reporting Period.

• Publicity.

  Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. Licensee grants Licensor permission to use Licensee’s name and logo(s) in connection with promotion of Licensor’s products and services. All representations of Licensee’s logo shall be exact copies of those used by Licensee in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.