Hasura, Inc.: MASTER SOFTWARE AND SERVICES LICENSE AGREEMENT

Certain Definitions

General Terms and Conditions

• Orders; Subscriptions; Delivery.

  1. Orders; Subscriptions. The Licensed Software and, where applicable, the Licensor Cloud Platform/Services are provided on a subscription basis pursuant to Orders entered into under this Agreement. Each Subscription shall be for the term specified in the applicable Order. During the applicable Subscription term, Licensor may modify, update, enhance, or replace features or functionality of the Licensed Software or Licensor Cloud Platform/Services from time to time, provided that such changes do not result in a material downgrade of the overall functionality of the Licensed Software during such Subscription term. For any fee-based Subscription, Licensee shall provide billing and payment information as required by Licensor.
  2. Professional Services. If Licensee has purchased Professional Services from Licensor as set forth in the applicable Order, in addition to the terms and conditions set forth in this Agreement, such Professional Services shall be subject to the additional terms and conditions set out in Exhibit A attached hereto.
  3. 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. This Agreement shall begin on the Effective Date and shall continue in force for an initial term of one year after the Effective Date (the "Initial Term"), unless validly terminated earlier. Thereafter, this Agreement shall automatically renew for additional one-year periods ("Renewal Term") unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term. The Initial Term and the Renewal Term shall collectively be referred to as the "Term".
  2. Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Thereafter, each Order shall automatically renew for additional one-year periods (or such other period as may be agreed to in an Order) unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
  3. Termination. This Agreement and any Order 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 Licensor's reasonable determination that Licensee's use of the Licensed Software violates any applicable law or regulation; or (b) in the case of Cloud Edition and Bring Your Own Cloud Edition Subscriptions, 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.
  4. Effect of Termination. Upon termination of this Agreement or any Order, 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 shall promptly cease all use of the Licensor Cloud Platform/Services. Licensee shall, upon Licensor's written request, certify in writing its compliance with the foregoing and, in addition, upon the other party's written request, each party shall return or destroy all Confidential Information of the other party in its possession or control, except to the extent such Confidential Information is required to be retained by applicable law or is retained in accordance with such party's bona fide archival or backup policies, in which case such Confidential Information shall remain subject to the confidentiality obligations of this Agreement for so long as it is retained. 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. The following provisions shall survive expiration or termination of this Agreement: Sections 2.4 (Effect of Termination), 2.6 (Termination Not Exclusive Remedy), 3 (Ownership of Intellectual Property), 4.2 (Open-Source Software), 4.4 (Restrictions), 4.5(b) (Business Contact Information), 4.5(c) (Usage Data), 7.5 (Disclaimer), 8 (Indemnities), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Import and Export Regulations), 12 (Security), 13 (Certain Terms Applicable to Free/Non-Paid Subscriptions, if applicable), 15 (Dispute Resolution), and 16 (Miscellaneous), together with all definitions used therein and all accrued rights to payment.
  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. All right, title, and interest in and to the Hasura products and services, including all Intellectual Property Rights therein, are and will remain with Hasura or it's licensors. Hasura shall own all right, title and interest to any (i) Updates, modification, enhancements or improvements to the Hasura products and/or services, (ii) the Usage Data, (iii) the result of any Support, Professional Services and or other services provided by Hasura, (iv) to all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee or any third party relating to the Licensed Software or the Licensor Cloud Platform/Services, which are hereby assigned to Licensor, and (v) the Intellectual Property Rights in any of the foregoing.
  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 in and to: (a) Licensee Products and Services; and (b) the Licensee Data.

• License Grants; Restrictions.

  1. License Grant to Licensor Proprietary Software. Subject to and in consideration of Licensee's compliance with the terms and conditions of this Agreement:
     1. In the case of a Self-Hosted Edition Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Order, a royalty-free, limited, non-exclusive, non-transferable (except as otherwise expressly set forth in this Agreement) and non-sublicensable license to install, copy, configure and use the Licensor Proprietary Software in connection with 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 Order, 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 Software 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.
     3. In the case of a Bring Your Own Cloud Edition Subscription, Licensor hereby grants to the Licensee, solely during the applicable term of the Subscription specified in an Order, 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 Software, pre-installed and managed by Licensor within the Licensee's designated cloud environment, as specified in the applicable Order; and
        2. use the Documentation, training materials, or other materials supplied by Licensor to enable such licensed rights and the use of the Licensor Proprietary Software within the Licensee's designated cloud environment.
     4. Licensee shall provide Licensor with all necessary access to its cloud environment for Licensor to be able to conduct its installation and ongoing management responsibilities. Licensee shall not, without the express written consent of Licensor, modify, alter, or interfere with the Licensor Proprietary Software or its installation within the Licensee's designated cloud environment. Licensee acknowledges that any restriction, delay or revocation of the access required by Licensor to perform installation or management responsibilities may prevent Licensor from performing its obligations and Licensor shall have no liability for any failure to perform the Licensed Software or the Licensor Cloud Platform/Services to the extent resulting from or related to such restriction, delay or revocation.
  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 Self-Hosted Edition 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.
     1. General Restrictions. Licensee shall not, and shall not permit any third party to: (i) remove, alter, or obscure any proprietary notices or markings included in the Licensed Software; (ii) reverse compile, disassemble, decompile, or otherwise attempt to derive the source code of the Licensed Software, except to the extent expressly permitted by applicable law; (iii) copy, modify, adapt, distribute, sublicense, rent, lease, sell, resell, or otherwise make available the Licensed Software except as expressly permitted under this Agreement; (iv) make the Licensed Software available to, or use the Licensed Software for the benefit of, any person other than Licensee or Licensee's Customers; (v) use the Licensed Software to build or support a competitive product or service; (vi) circumvent or exceed any contractual usage limits or technical restrictions; or (vii) use the Licensed Software in any manner inconsistent with this Agreement.
     2. Additional Restrictions for Hosted Subscriptions. With respect to Cloud Edition and Bring Your Own Cloud Edition Subscriptions, Licensee shall not, and shall not permit any third party to: (i) use the Licensed Software or Licensor Cloud Platform/Services to store, transmit, or process content that is unlawful, malicious, misleading, or discriminatory; (ii) interfere with or disrupt the integrity, performance, or security of the Licensor Cloud Platform/Services or the data or systems of Licensor or its other customers; (iii) bypass, disable, or circumvent any technical limitations or security measures; (iv) introduce malware or harmful code; (v) access or attempt to access accounts, systems, or data not expressly authorized for Licensee's use; or (vi) use the Licensor Cloud Platform/Services for cryptocurrency mining or similar resource-intensive activities unrelated to the intended purpose of the services.
  5. License Grant by Licensee.
     1. Licensee Data. During the term of the applicable Subscription, Licensee grants Licensor a non-exclusive, worldwide, royalty-free right to host, access, use, process, transmit, and display Licensee Data solely as necessary for Licensor to perform its obligations and exercise its rights under this Agreement, including to provide the Licensed Software, Licensor Cloud Platform/Services, Support, and Professional Services, and to comply with applicable law.
     2. Business Contact Information. During and after the term of the applicable Subscription, Licensee grants Licensor the right to use and process Business Contact Information for purposes of establishing, administering, and supporting the business relationship between the parties, including account administration, customer support, billing, invoicing, customer success, communications relating to the Licensed Software, Licensor Cloud Platform/Services, Support, and Professional Services, and compliance with applicable law.
     3. Usage Data. Licensee acknowledges and agrees that Licensor may collect and generate Usage Data during the term of the applicable Subscription in connection with the operation, use, support, and performance of the Licensed Software, Licensor Cloud Platform/Services, Support, and Professional Services. Licensor may use Usage Data during and after the term of the applicable Subscription for Licensor's legitimate business purposes, including to operate, maintain, analyze, improve, and develop its products and services. Usage Data shall not constitute Licensee Data.
     4. Processing of Personal Information subject to a DPA. To the extent that applicable privacy law(s) requires a data processing or similar agreement between Licensor and Licensee, Licensor shall Process Personal Information forming part of Licensee Data in accordance with Hasura's Data Processing Agreement found at (https://hasura.io/legal/hasura-data-processing-addendum).
  6. Use of PromptQL. Notwithstanding any provision of the Agreement to the contrary, the following shall apply to the Licensee's use of PromptQL. The Licensor shall not be held liable for any use, application, or reliance by the Licensee or any third party on the outputs, database API queries or other results generated through the use of PromptQL including, without limitation, its interactions with large language models (LLMs), including, without limitation, any unavailability, degradation or improper functionality of the LLM causing the same in PromptQL. The Licensee acknowledges and agrees that:
     1. No Warranty of Accuracy. The outputs generated through PromptQL are based on probabilistic models and may contain inaccuracies, errors, or incomplete information. The Licensor makes no representations or warranties, express or implied, regarding the accuracy, reliability, or suitability of such outputs for any particular purpose.
     2. Licensee Responsibility. The Licensee assumes full responsibility for the verification, validation, and application of outputs or responses generated through PromptQL, including but not limited to database queries generated by PromptQL and the decision-making based on such outputs.
     3. Provision of LLMs and Rights. If the Licensee provides their own LLM(s) for use with Prompt QL, the Licensee represents and warrants that it has obtained all necessary rights, licenses, and permissions from the LLM provider to permit the use of the applicable LLM with PromptQL. Hasura shall have the right, in its sole discretion, to reject any LLM designated by Licensee.
     4. Indemnification for LLM Provider Claims. The Licensee agrees to indemnify, defend, and hold harmless the Licensor from and against any claims, demands, liabilities, damages, losses, costs, or expenses (including reasonable attorneys' fees) arising out of or related to any claim brought by the LLM provider against the Licensor resulting from the Licensee's use of the LLM in connection with PromptQL, including but not limited to claims of unauthorized use or breach of terms with the LLM provider.
     5. Exclusion of Liability for PromptQL Outputs. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, COST, OR EXPENSE ARISING FROM OR RELATING TO LICENSEE'S OR ANY THIRD PARTY'S USE OF, RELIANCE ON, OR APPLICATION OF ANY OUTPUTS, DATABASE QUERIES, RECOMMENDATIONS, OR OTHER RESULTS GENERATED THROUGH PROMPTQL, INCLUDING ANY ERRORS, INACCURACIES, OMISSIONS, OR MISINTERPRETATIONS IN SUCH OUTPUTS. LICENSEE ACKNOWLEDGES AND AGREES THAT PROMPTQL OUTPUTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR REVIEWING, VALIDATING, AND DETERMINING THE APPROPRIATENESS OF ANY SUCH OUTPUTS FOR ITS INTENDED USE.
  7. Suspension of Services. Licensor may suspend or limit Licensee's access to the Licensed Software or Licensor Cloud Platform/Services, in whole or in part, upon written notice to Licensee (or without prior notice where immediate action is reasonably necessary), if Licensor reasonably determines that: (a) Licensee's use of the Licensed Software or Licensor Cloud Platform/Services violates this Agreement, an applicable Order, or applicable law or regulation; (b) such suspension is necessary to comply with a court order, governmental request, or other legal obligation; (c) Licensee's use of the Licensed Software or Licensor Cloud Platform/Services poses a material security risk, operational risk, or threat to the stability or availability of the Licensed Software, the Licensor Cloud Platform/Services, or services provided to other customers; or (d) Licensee has failed to pay any undisputed amounts when due. Licensor shall use commercially reasonable efforts to limit the scope and duration of any suspension and, where practicable, to restore access promptly following resolution of the underlying issue.
  8. Third Party Services; Licensee Developed Software; Service Suspension.
     1. Third Party Hosting and Infrastructure. The Licensed Software and, where applicable, the Licensor Cloud Platform/Services may operate on, integrate with, or depend upon infrastructure, platforms, or services provided by third parties, including cloud hosting providers and platform vendors that are not owned or controlled by Licensor. Licensee acknowledges and agrees that Licensor does not control the operation, availability, performance, security, or reliability of such third party services. Licensor shall have no responsibility or liability for any unavailability, downtime, interruption, error, data loss, degradation, or failure of the Licensed Software or Licensor Cloud Platform/Services to the extent resulting from or attributable to any third party hosting provider, platform provider, or other third party service.
     2. Licensee Developed Software and Configurations. Licensee is solely responsible for all software, applications, databases, scripts, configurations, integrations, workflows, and other materials developed, deployed, connected, or used by Licensee or its Customers in connection with the Licensed Software or Licensor Cloud Platform/Services, including any Licensee Products and Services and Licensee Data. Licensor does not warrant and shall have no responsibility or liability for the performance, functionality, security, compliance, or results of any such Licensee developed software or materials, or for any failures, errors, or service issues caused by or arising from the same.
     3. Suspension for Legal Compliance. Licensor may suspend or limit Licensee's access to the Licensed Software or Licensor Cloud Platform/Services, in whole or in part, to the extent reasonably necessary for Licensor to comply with applicable law, regulation, court order, or governmental request, or to prevent or address a material legal or regulatory risk to Licensor. Where reasonably practicable, Licensor shall provide Licensee with notice of such suspension and shall use commercially reasonable efforts to restore access promptly after the basis for such suspension has been resolved.
  9. Licensee Systems and Network Environment. Licensee acknowledges that the operation and performance of the Licensed Software and, where applicable, the Licensor Cloud Platform/Services may depend on Licensee's own systems, networks, cloud environments, security controls, configurations, and connectivity, including environments owned or controlled by Licensee or its third-party providers. Licensor shall have no responsibility or liability for any unavailability, interruption, degradation, error, security incident, or failure of the Licensed Software or Licensor Cloud Platform/Services to the extent caused by or arising from Licensee's systems, networks, cloud environment, configurations, access controls, or connectivity, including any failure to provide or maintain required access, permissions, or technical prerequisites.

• 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 Self-Hosted Edition 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. Licensee shall be responsible for all usage and activity occurring under its accounts and credentials including any OLU usage generated through compromised, misused or improperly secured credentials except to the extent caused directly by Licensor. Licensee is solely responsible for ensuring the accuracy, integrity and configuration of Licensee Data and any data or metadata supplied by Licensee or its Customers and Licensee acknowledges that malformed, corrupted, incomplete or improperly configured data or metadata may result in increased OLU usage all of which shall be the responsibility of Licensee.

• Fees; Payments.

  1. Accrual of Payment Rights. Licensor's right to payment for the Licensed Software licensed by Licensee shall accrue on the date the Licensed Software are Delivered to Licensee. Except as set forth under "Warranties; Disclaimer", or in an applicable Order, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.
  2. Invoicing and Payment; Discrepancies. Licensor will invoice Licensee in accordance with the relevant Order and, with respect to any Usage Based Fees including OLU based fees and any passthrough compute or LLM fees identified in the applicable Order, in accordance with Sections 6.3, Section 6.5 and Section 15.14. Unless otherwise indicated, payment of the Subscription Fees including any Usage Based Fees are due within 30 days of Licensor's date of the appliable invoice. In the case of non-payment of any undisputed fees, Licensor may, at its sole discretion: (a) suspend Licensee's access to the Licensed Software; (b) terminate this Agreement; or (c) continue to provide the Licensed Software, for a period solely determined by Licensor, in anticipation of full and prompt payment by Licensee. Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. Licensor shall be entitled to reimbursement for any costs actually incurred by Licensor for the collection of any past-due balance. Licensor does not generally charge Licensee for the infrastructure costs of provided Cloud Edition Subscriptions. However, in cases where Licensee consistently exceeds reasonable usage limits which negatively impact the costs, performance or stability of Hasura products and/or services, the Parties agree that pricing may be renegotiated as there may be additional fees for excessive usage of such infrastructure costs.
  3. Passthrough Fees. To the extent an Order identifies any passthrough fees associated with compute, LLM usage or other third party services such passthrough fees shall be invoiced based on the actual amounts charged to Licensor by the applicable third party provider and Licensee acknowledges that such amounts may vary during the Subscription term. Any changes in provider rates shall automatically be reflected in the passthrough fees charged to Licensee and shall not be deemed a modification of pricing requiring amendment of the applicable Order.
  4. Taxes. Unless otherwise stated with respect to terms and conditions for a specific Subscription type, all stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Licensed Software or Support licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Licensor based on Licensor's income.
  5. Committed OLU Usage; Expiration; Overage.
     1. If an Order specifies that any portion of the Subscription Fees will be calculated by reference to OLUs, such Order shall identify for each applicable Subscription term the committed prepaid quantity of OLUs for such term (the "Committed OLU Quantity") and the applicable pricing for OLUs. Licensee shall prepay the Committed OLU Quantity for each Subscription term as set forth in the applicable Order.
     2. Licensee acknowledges and agrees that any OLUs included in the Committed OLU Quantity that are not used during the applicable Subscription term will automatically expire at the end of such Subscription term and will not roll over to any subsequent term. Licensee shall not be entitled to any refund, credit or offset for any unused portion of the Committed OLU Quantity.
     3. If during any Subscription term Licensee's actual OLU usage exceeds the Committed OLU Quantity for such term, Licensor may notify Licensee of such excess usage. Promptly following such notice, the Parties shall discuss in good faith whether to execute a new or amended Order to increase the Committed OLU Quantity for the remainder of the then current Subscription term and or any renewal term. If the Parties do not execute such a new or amended Order Licensee shall remain responsible for and shall pay in accordance with Section 6.2 all Usage Based Fees for OLUs in excess of the Committed OLU Quantity calculated at the overage rates set forth in the applicable Order or if no such overage rates are specified at Licensor's then current standard OLU overage rates.
     4. Licensor will determine OLU usage including the number of OLUs processed and whether particular activity gives rise to OLU usage using the Licensed Software's and or the Licensor Cloud Platform/Services' standard metering and logging tools. Subject to Section 15.13, Licensor's records of OLU usage generated by such tools shall be presumed correct and binding on the Parties for billing and audit purposes absent a demonstrable error.
     5. In addition to any other rights and remedies available to Licensor if Licensee materially exceeds the Committed OLU Quantity or any other usage limitation set forth in an Order and fails to pay the associated Usage Based Fees in accordance with this Agreement Licensor may suspend or throttle Licensee's access to the Licensed Software and or the Licensor Cloud Platform/Services upon written notice provided that Licensor shall provide no less than five days prior written notice before suspending or throttling access for non-payment of Usage Based Fees unless such delay would result in a security risk or material degradation of the Licensor Cloud Platform/Services.
     6. Licensee is solely responsible for all OLU usage generated through Licensee's systems, applications, scripts, integrations, agents or Customer activity whether intended or unintended and whether authorized or unauthorized except to the extent such usage is caused directly by a demonstrable error in the Licensed Software or the Licensor Cloud Platform/Services. All such usage counts toward Licensee's OLU totals for billing and audit purposes.

• 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, either: (a) repair or replace the defective Licensed Software to enable it to perform substantially in accordance with the Specifications; or (b) terminate this Agreement and refund to Licensee any fees prepaid by Licensee to Licensor for the defective Licensed Software for any period after the effective date of any such termination.
  4. Licensee's Warranties. Licensee represents and warrants that Licensee owns all Licensee Data or Licensee has all rights that are necessary to permit Licensor to provide the services and exercise the rights as outlined in this Agreement, including but not limited, to the collection, Processing, and use of Licensee Data in accordance with the terms specified in this Agreement.
  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: (i) not provided directly to Licensee by Licensor; (ii) 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 (iii) 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) a breach by Licensee of any of its warranties and representations set forth in this Agreement, (b) the intellectual property rights or privacy rights in any of the Licensee Data or any allegation that Licensee Data infringes, misappropriates, or otherwise violates any third-party intellectual property right or privacy or data protection right, or (c) Licensee's misuse of the Licensed Software or Licensor Cloud Platform/Services in violation of this Agreement or applicable law.
  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; (c) replace the Licensed Software with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; or (d) if neither (a) - (c) are commercially reasonable, Licensor may terminate the applicable license and direct Licensee to cease all use of the infringing Licensor Proprietary Software. In such event, Licensor shall refund to Licensee a pro-rata portion of the fees paid for the infringing Licensor Proprietary Software, based on the remaining portion of the applicable Subscription term.
  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. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO CLAIMS ARISING FROM OR RELATING TO (A) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) LICENSEE'S BREACH OF THE LICENSE GRANTS OR LICENSE RESTRICTIONS SET FORTH IN THIS AGREEMENT, (C) LICENSEE'S BREACH OF ITS REPRESENTATIONS AND WARRANTIES REGARDING ITS RIGHTS TO, AND CONSENTS FOR, LICENSEE DATA, (D) LICENSEE'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OR (E) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, IN EACH CASE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. Limitation of Aggregate Liability. EXCEPT WITH RESPECT TO CLAIMS ARISING FROM OR RELATING TO (A) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) LICENSEE'S BREACH OF THE LICENSE GRANTS OR LICENSE RESTRICTIONS SET FORTH IN THIS AGREEMENT, (C) LICENSEE'S BREACH OF ITS REPRESENTATIONS AND WARRANTIES REGARDING ITS RIGHTS TO, AND CONSENTS FOR, LICENSEE DATA, (D) LICENSEE'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OR (E) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW, THE TOTAL, CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS, DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING LIMITATION SHALL APPLY IN THE AGGREGATE TO ALL CLAIMS AND SHALL NOT APPLY ON A PER CLAIM BASIS, AND SUBSEQUENT EVENTS OR CLAIMS SHALL NOT INCREASE OR RESET THE MAXIMUM AGGREGATE LIABILITY CAP.

• Confidentiality.

  1. Confidentiality Agreement. Each of the parties undertakes to the other to keep confidential all non-public information concerning the business, technology, products, services, operations, customers, pricing, roadmaps, security practices, or affairs of the other party that is disclosed or made available in connection with the discussions leading up to, or the entering into or performance of, this Agreement ("Confidential Information"). Confidential Information includes, without limitation, the Licensed Software, Documentation, product roadmaps, product development plans, pricing, business plans, customer lists, and business and financial information of a party, whether or not marked or identified as confidential. Confidential Information disclosed in tangible form and marked as "confidential," "proprietary," or similar legend shall be deemed Confidential Information. Confidential Information disclosed orally or visually shall be deemed Confidential Information if a reasonable person would understand, under the circumstances of disclosure, that such information is confidential in nature.
  2. Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party's possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party's approval; or (e) 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.

• Security

  Licensee 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 Licensee Data, including Personal Information. Despite the foregoing, in connection with Cloud Edition and Bring Your Own 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.

• Beta Products.

  From time to time, Licensor may make available certain features, services, or functionality that are identified as beta, preview, early access, experimental, or similar (collectively, "Beta Products"). Beta Products are provided for evaluation and testing purposes only and are not generally available offerings. Beta Products are provided "AS IS" and "AS AVAILABLE," with no warranties, representations, service levels, or support obligations of any kind, whether express, implied, or statutory. Without limiting the foregoing, Licensor disclaims all warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, availability, and uninterrupted operation with respect to any Beta Products. Licensor may modify, suspend, or discontinue any Beta Product at any time in its sole discretion and without liability. Licensor makes no commitment that any Beta Product will become generally available or that any functionality included in a Beta Product will be included in a future release. Licensee acknowledges and agrees that use of Beta Products is at Licensee's sole risk and that Beta Products may be incomplete, unstable, or contain errors, bugs, or security vulnerabilities. Licensee is solely responsible for determining whether use of a Beta Product is appropriate for its intended purposes and for backing up any data used in connection with Beta Products. To the maximum extent permitted by applicable law, Licensor shall have no liability arising out of or related to Licensee's use of any Beta Product.

• 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 15.3 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 15.3 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 15.3 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 under this Agreement shall be in writing and in the English language and shall be deemed given when delivered by personal delivery, sent by a nationally recognized overnight courier, sent by registered or certified mail (return receipt requested), or sent by email. Notices delivered by personal delivery, overnight courier, or registered or certified mail shall be deemed given upon receipt. Notices sent by email shall be deemed given upon transmission, provided that no bounce-back or error message indicating non-delivery is received. Notices to each party shall be sent to the address set forth for such party in the introductory paragraph of this Agreement. If the introductory paragraph does not specify an address for Licensee, notices to Licensee shall be sent to the address designated in the applicable Order or as otherwise designated by Licensee in writing from time to time. Notices to Licensor shall also be sent by email to [email protected], Attn: Legal Affairs. Either party may update its notice address or email by providing written notice to the other party in accordance with this Section.
  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. Licensee shall not assign, transfer, or delegate any of its rights or obligations under this Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Licensor. Any such purported assignment or transfer without Licensor's consent shall be null and void. Notwithstanding the foregoing, Licensor may freely assign or transfer this Agreement, in whole or in part, without Licensee's consent: (a) to any of its Affiliates; or (b) in connection with any merger, acquisition, reorganization, sale of assets, or other change of control event. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
  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 15. 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 any payment 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 Licensee 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 16.12. 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 16.12, 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 16.12 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 and usage 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. Usage Measurement and Reporting.
      1. Licensor will determine Licensee's usage of Models, Active Models, PromptQL Models, Data Plane Zones, Regions, OLUs and any other consumption-based metrics applicable to the Subscription (collectively, the "Usage Metrics") through data collected from Licensee's use of the applicable Self-Hosted Edition, Bring Your Own Cloud Edition, or Cloud Edition Subscription.
      2. If, for any reason, Licensor does not collect the necessary data to determine Licensee's Usage Metrics for any calendar quarter during the applicable Subscription term (or after the applicable Subscription term with respect to the final reporting period), then upon Licensor's request, Licensee shall, no later than 15 calendar days after receiving such request, deliver to Licensor a written usage report, generated through the Licensor console or otherwise certified by an authorized agent of Licensee (the "Licensee Usage Report"), stating the actual Usage Metrics utilized during the applicable quarter.
      3. If the Usage Metrics determined by Licensor or reported by Licensee for any Reporting Period exceed the quantities purchased by Licensee for the applicable Subscription term, then Licensee shall issue an amended or additional purchase order for the incremental Usage Metrics and Licensor shall invoice Licensee for the corresponding additional fees. Such fees will be pro-rated for the remaining months of the applicable Subscription term, and Licensee shall pay all properly issued invoices.
      4. The Parties acknowledge and agree that (i) no fee reduction, refund, or credit will be provided for usage below the quantities purchased for the applicable Subscription term, and (ii) for each Licensee Usage Report delivered under Section 16.14(b), Licensee represents and warrants that such report accurately reflects its actual Usage Metrics for the applicable 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.