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SOFTWARE SUBSCRIPTION AGREEMENT
This Software Subscription Agreement, effective as of _______ ___, 20___ (the “Effective Date”), is between NuoDB, Inc., a Delaware corporation, with offices at 150 CambridgePark Drive, Suite 701, Cambridge, MA 02140, USA (“NuoDB”), and __________, a __________ corporation, with offices at ____________________ (“Licensee”). The parties agree as follows:
“Agreement” means the terms in the body of this document, the terms of the Professional Services Addendum, the Exhibits, any Statements of Work and any Sales Orders.
“Application” means Licensee's software application that includes or utilizes the Software, and shall be deemed to include any corresponding Application Client.
“Application Client” means any "client" software (in executable format) that is necessary for an end-user to access and use an Application, which is hosted and operated by Licensee in providing a Licensed Service to such end user.
“Database” means a collection of Engines within a Domain that act together to form a single database.
“Documentation” means the Software user guide, help information and other technical documentation made available by NuoDB (in paper, digital or electronic form).
“Domain” means a collection of Hosts that have been provisioned to run Engines to support one or more Databases. For clarity, a single Domain may include one Database, or a group of Databases that are centrally managed by or on behalf of Licensee. If permitted under a particular license type, a Domain may span one or more Locations, by including Engines configured as part of the Domain in those Locations.
“Engine” means Storage Manager Engine, Transaction Engine, Peak Load Engine and Snapshot Storage Manager Engine.
“Host” means each instance of an operating system running on a physical or virtual computer within a Domain that is used to operate the Software.
“Licensed Service” means an Application that is hosted and operated by Licensee for access and use by Licensee's employees or customers on a time-share, service bureau, software-as-a-service or similar basis, but only where the Software is incapable of being used separately or apart from such Application. For clarity, all use of the Software by Licensee (in the aggregate, considering all Applications and Licensed Services) remains subject to any applicable limit on number of licensed Engines and Hosts.
“Location” means a set of Hosts, all in a single data center or cloud provider availability zone, configured by Licensee via the Software’s administration layer. For clarity, to enable use of the Software in more than one Location, Licensee must obtain an Enterprise Edition License.
“Non-Production” means use of the Software in a non-production environment and for non-production purposes, such as a development, test or quality assurance environment.
“Peak Load Engine” means either a Transaction Engine or Storage Engine that may be used for a limited duration during a specified, recurring time period (for example 5 days per calendar month or 10 days per calendar month), as specified in the Sales Order.
“Production” means use of the Software with an Application in Licensee’s production environment or for Licensee’s production purposes.
“Sales Order” means the written description in paper or electronic form prepared by NuoDB (or NuoDB's invoice, if no such writing exists), which describes the Subscription Type, Subscription Fee, Subscription Term and any related limitations, terms and conditions applicable to the provision of the Software to Licensee (e.g., number of licensed Engines and/or Hosts, Production or Non-Production use, etc.).
“Snapshot Storage Manager Engine” means a process within the Database that manages data storage for a snapshot backup (i.e., a copy of a running Database made at a specific point in time).
“Software” means the executable version of NuoDB's database software product that is specifically identified in the Sales Order and made available for download by Licensee, or that otherwise is intentionally made available or delivered to Licensee under this Agreement (e.g., updates that may be delivered in connection with any support services).
“Storage Manager Engine” means a process within the Database that manages data storage.
“Subscription Fee” means the subscription fee specified in the Sales Order and payable for the Subscription Type during the specified Subscription Term, subject to this Agreement and any limitations specified in the Sales Order.
“Subscription Term” means the subscription term specified in the applicable Sales Order. If no period is specified in the applicable Sales Order, the Subscription Term shall be one (1) year from the effective date of such Sales Order.
“Subscription Type” means the subscription type applicable to Licensee's authorized use of the Software, Documentation and Applications (i.e., Professional Edition, Enterprise Edition or Host Edition) that is expressly specified in the Sales Order, and which shall be further described in this Agreement. If no Subscription Type is specified in the Sales Order, Licensee is authorized to use the Software solely under a license for the Professional Edition.
“Support Services” means the technical support and maintenance services for the Software, which are more fully described at www.nuodb.com/support-services.
“Transaction Engine” means a process within the Database that provides an Application Client with access to the Database.
2.1 Software Subscription. Subject to all terms and conditions of this Agreement, NuoDB grants to Licensee a nonexclusive, nontransferable right and license to download, install and use the Software without modification, in accordance with the Documentation, solely for Licensee's internal business purposes (including to develop, test, host and operate a Licensed Service) during the Subscription Term. Licensee’s use of the Software is limited to either Production or Non-Production purposes, as specified in the Sales Order. Licensee may make a reasonable number of copies of the Software solely for inactive backup and archival purposes. Use of each Peak Load Engine during the Subscription Term shall be limited to the duration specified in the Sales Order. Depending on the Subscription Type specified in the Sales Order, Licensee's use of the Software shall also be subject to the following terms, as applicable:
a. Professional Edition. The use of Software under a subscription license for the Professional Edition is subject to the Subscription Fee and limitations in the number and types of Engines and/or Hosts specified in the Sales Order. In any case, the use of the Professional Edition is limited to one Location. Under the subscription license for the Professional Edition, Licensee may allocate no more than thirty two (32) GB of memory to each Engine. For each subscription license for the Professional Edition, Licensee may configure Engines on Hosts with up to sixteen (16) real or virtual cores. If a configured Host has more than sixteen (16) cores, an additional paid subscription license for the Professional Edition(and corresponding Subscription Fee) is required for each additional block of up to sixteen (16) cores.
b. Enterprise Edition. The use of Software under a subscription license for the Enterprise Edition is subject to the Subscription Fee and limitations in the number of Engines and/or Hosts specified in the Sales Order. The Enterprise Edition may be used as part of a multi-Location deployment. Under a subscription license for the Enterprise Edition, the amount of memory used for each Engine is unlimited. For each subscription license for the Enterprise Edition, Licensee may configure Engines on Hosts with up to sixteen (16) real or virtual cores. If a configured Host has more than sixteen (16) cores, an additional paid subscription license for the Enterprise Edition (and corresponding Subscription Fee) is required for each additional block of up to sixteen (16) cores.
2.2 Upgrades. Upon Licensee's request, NuoDB may agree (as set forth in a corresponding Sales Order) to upgrade any subscription license for the Professional Edition to a subscription license for the Enterprise Edition, subject to payment of the applicable Subscription Fee (if any) and the other terms and conditions of this Agreement.
2.3 Subscription Term. The Subscription Type provided, and the associated license rights granted, under this Agreement shall be valid solely for the Subscription Term. Unless otherwise specified in the Sales Order and subject to payment of applicable Subscription Fees, the Subscription Term shall automatically renew for an additional 1 year term at NuoDB's then current pricing, unless either party gives the other written notice of non-renewal at 30 days before the end of the relevant Subscription Term. Notwithstanding the foregoing, the Subscription Term shall terminate automatically, without further action or notice by either party, immediately upon any termination of this Agreement.
2.4 License Keys and Logs. Licensee understands and agrees that (a) the Software may contain code and/or may require license keys or devices that detect or prevent unauthorized use of, or disable, the Software, and (b) it will provide NuoDB reasonable access to the automated audit logs (if any) maintained by the Software (including without limitation, permitting the Software to transmit the audit logs to NuoDB automatically from time to time).
2.5 Distribution. Neither the Software nor any Application may be transferred, sublicensed or otherwise distributed (in whole or in part), except pursuant to a Licensed Distribution. The term “Licensed Distribution” means either:
(a) any distribution of the Software or an Application only as and to the extent expressly authorized and specified in the Sales Order or any separately written OEM, distribution or other license agreement executed by the parties; or (b) any distribution of an Application Client to an end-user of a Licensed Service pursuant to an enforceable sublicense agreement that limits use by the end-user to accessing and using the Licensed Service. In any case, Licensed Distributions shall be subject to the requirements of Section 6.2.
2.6 Additional Limitations. The Software is licensed as a single product set and although Licensee may license add-on or additional products, Licensee may not use component parts of the Software separately. In addition, Licensee agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions set forth in the Sales Order, Documentation or elsewhere in this Agreement, including without limitation, any restriction regarding: the time period during which the Software may be used or a Subscription Type may be valid; the size or configuration of the system with which the Software may be used (such as, based on number of Engines, number of Hosts, number of Domains, or other metrics); peak load limitations; the number of Applications that can be developed or deployed internally; the number of Licensed Services or Licensed Distributions; or limited purposes for which the Software may be used (such as, trial or development use).
2.7 Documentation. Subject to all terms and conditions in this Agreement, NuoDB grants to Licensee a nonexclusive, nontransferable right and license to use the Documentation, solely in connection with its authorized use of the Software during the Subscription Term. Licensee may make exact copies of the Documentation as reasonably needed to support its authorized use of the Software.
2.8 Community Edition Licenses. This Agreement does not grant any rights for the use of the Community Edition of NuoDB’s software, and any such rights must be obtained under a separate agreement. In addition, unless otherwise specified in a Sales Order, upon commencement of this Agreement, Licensee expressly acknowledges and agrees that: (i) any licenses granted by NuoDB to Licensee (or any of Licensee’s affiliates) for the use of the Community Edition of NuoDB’s software shall automatically terminate, and (ii) Licensee (and any of Licensee’s affiliates) will no longer be eligible to obtain a license for the use of the Community Edition of NuoDB’s software.
3.1 Support Services. NuoDB will use commercially reasonable efforts to provide the Support Services in accordance with its then current practices. NuoDB has no obligation to provide Support Services for any version of the Software other than the then-current version and the immediately preceding major version. In place of any prior version, Licensee shall promptly download, install and use any Software update made available by NuoDB. Licensee agrees that NuoDB may charge in accordance with its then current policies for any Support Services resulting from problems, errors or inquiries related to any Application or any use of the Software that does not comply with this Agreement. Unless otherwise specified in a Sales Order, payment of the Subscription Fee for the Professional Edition or the Enterprise Edition includes access to applicable Support Services during the applicable Subscription Term. If specified in an applicable Sales Order, premium support services (“Premium Support Services”) will be provided by NuoDB in accordance with such Sales Order.
3.2 Other Services. From time to time, Licensee may request and NuoDB may agree, subject to availability of applicable resources, to provide certain installation, implementation, custom development, consulting, training or other professional services. The terms and conditions of such arrangement shall be on the terms set out in the Professional Services Addendum attached hereto, which forms part of the Agreement.
4.1 Fees. Licensee agrees to pay NuoDB all Subscription Fees (as applicable) and other charges in the amounts and at the times specified in the Sales Order and as otherwise provided in this Agreement. Fees and charges may be: specified as being payable in advance or in arrears; fixed, contingent or variable (e.g., depending on usage factors); specified on a recurring or non-recurring basis.
4.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at NuoDB's address or to an account specified by NuoDB. Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Licensee agrees to reimburse NuoDB for all costs (including attorneys' fees) incurred in collecting late payments.
4.3 Taxes. The prices stated in this Agreement do not include any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of any Software, Documentation or services. Licensee agrees to pay all such charges and not to reduce any payment to NuoDB as a result thereof. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. If Licensee claims exemption from any tax, then it shall furnish NuoDB with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
4.4 Audit. Upon reasonable advance written notice, NuoDB (or an independent auditor reasonably acceptable to Licensee) shall have the right to verify Licensee's compliance with this Agreement. Licensee shall make its systems and all applicable books and records available for such inspection during normal business hours at Licensee's principal place of business. Any audit shall be at NuoDB's expense, unless it discloses an underpayment by Licensee for the audited period in excess of 5%, in which case Licensee shall reimburse NuoDB for such expenses.
5.1 Definition. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or for a party in relation to this Agreement, that are marked or otherwise identified as proprietary or confidential at time of disclosure or that by their nature would be understood by a reasonable person to be proprietary or confidential (and including all copies, abstracts, summaries, analyses and derivatives thereof). Confidential Information shall not include any information that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the disclosing party, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Software, Documentation and pricing information, and all results, analyses and other information related to any functional, performance and benchmark testing of the Software by Licensee, are deemed to be NuoDB's Confidential Information.
5.2 Confidentiality Obligation. Each party shall use reasonable care to keep the other's Confidential Information secret and, except for the specific rights granted by this Agreement, neither party shall possess, access, use, reproduce or disclose any of the other's Confidential Information without its prior written consent. The receiving party may disclose Confidential Information only to its employees and contractors who have a need to know for the permitted purpose and who are bound to safeguard the Confidential Information pursuant to obligations that are at least as protective as the restrictions in this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party's request at any other time), the receiving party shall return all of the other's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior written consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
6.1 Applications. As between the parties, Licensee owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to its Applications (but not any Software included or used therein). Licensee shall not embed, use or distribute any open source, copyleft or community source code (including without limitation, any libraries, code or other materials that are licensed or distributed under the GPL, LGPL, CDDL or any similar license or distribution model described by the Open Source Initiative at www.opensource.org) in connection with any Application, Licensed Service or other Licensed Distribution in any manner that would materially restrict the ability of Licensee to preserve and protect all intellectual property rights and proprietary interests in the Application or Licensed Service, or in any manner that requires, or purports to require: (a) any Software be disclosed or distributed in source code form or be licensed for the purpose of making derivative works; (b) any restriction on the consideration to be charged for the use or distribution of any Software; (c) the creation of any obligation regarding NuoDB's intellectual property or proprietary rights, or the grant to any third party of any rights or immunities under NuoDB's intellectual property or proprietary rights; or (d) any other limitation, restriction or condition on the right of NuoDB with respect to use or distribution of its own intellectual property or proprietary rights.
6.2 Sublicenses. Licensee shall not sublicense the use of, or distribute, any Software or Application, except as included or used in a Licensed Distribution, and then only to end user customers. All Licensed Services shall be provided pursuant to enforceable terms of service (or service agreement), and all other Licensed Distributions shall be made pursuant to an enforceable sublicense agreement, in either case, that contains provisions for NuoDB's benefit that are at least as protective of NuoDB (and its rights in and to the Software) as the provisions of this Agreement and all restrictions, disclaimers and limitations herein, that prohibits any further sublicensing or distribution and that terminates automatically upon any expiration or termination of this Agreement.
6.3 Restrictions. Except and only to the extent expressly permitted in this Agreement, Licensee shall not directly or indirectly (a) use any of NuoDB's Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying organization, structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, distribute, transfer, rent, lease or use the Software, (d) copy, adapt, translate, localize, port, combine, integrate, bundle, create derivative works of or otherwise modify any Software or Documentation, (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
6.4 Software. Except for the License expressly granted hereunder, no other right or license is granted (by implication, estoppel or otherwise), no other use is permitted, and as between the parties, NuoDB owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to the Software, Documentation and Support Services. Licensee agrees that it shall not take any action inconsistent with such title and ownership, and that NuoDB is free to use, without restriction, all suggestions and feedback regarding the Software provided by Licensee.
6.5 Markings. Licensee shall not obscure, alter or remove any printed or on-screen proprietary or legal notice displayed by or contained on or in the Software or Documentation.
6.6 Third Party Software. The Software may operate, interface or be delivered with software or other technology (In-Licensed Code) that is licensed from and owned by third parties (In-Licensors), the use of which may be subject to additional or different terms set forth in the applicable open source or other license described in the Documentation. Licensee unconditionally agrees that the In-Licensors (a) make no representation or warranty to Licensee concerning the In-Licensed Code or Software, (b) have no obligation or liability to Licensee as a result of this Agreement and (c) are intended third party beneficiaries of this Agreement. Upon Licensee's specific written request received during the term of this Agreement, NuoDB will make available to Licensee the source code for In-Licensed Code, but only if such source code was made available to NuoDB and doing so is required by the applicable license.
7.1 Support Services. NuoDB warrants to Licensee that the Support Services will be performed in a professional and workmanlike manner. Any warranty claim under this Section 7.1 must be made by Licensee in writing within 30 days after performance of the nonconforming Support Service. NuoDB's sole obligation and Licensee's exclusive remedy, and NuoDB’s sole and exclusive obligation, in respect thereof is to use commercially reasonable efforts to re-perform the nonconforming Support Service.
7.2 Software. NuoDB warrants to Licensee that, as delivered by NuoDB, the Software will substantially comply with the Documentation for 90 days after acceptance of this Agreement by Licensee (or such other warranty period expressly specified in the Sales Order, the Warranty Period). Any warranty claim under this Section 7.2 must be made in writing during the Warranty Period. NuoDB's sole obligation and Licensee's exclusive remedy in respect thereof is to use reasonable efforts to repair or replace the nonconforming Software or, at NuoDB's sole discretion, terminate this Agreement upon written notice and refund the Subscription Fees paid by Licensee upon return of the Software.
7.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER LICENSOR NOR ITS LICENSORS WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY APPLICATION OR OTHERWISE MEET LICENSEE'S BUSINESS REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR (FOR ITSELF AND ITS LICENSORS) HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8.1 By Licensee. Subject to the indemnity conditions set forth in Section 8.3 below, Licensee agrees to defend NuoDB against any claim by a third party that is related to (a) any Application, (b) Licensee's breach of any representation, warranty, covenant or other agreement made herein, or (c) claims excluded under Section 8.2(b), and to indemnify NuoDB for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims.
8.2 By NuoDB.
a. Infringement. Except as provided below and subject to the indemnity conditions set forth in Section 8.3 below, NuoDB agrees to defend Licensee against any claim by a third party that the Software infringes a valid US patent (issued as of the date of acceptance of this Agreement by Licensee), copyright or trade secret of such third party, and to indemnify Licensee for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims. If any Software becomes or, in NuoDB's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, NuoDB may, at its option and expense (i) obtain for Licensee the right to continue using such Software or (ii) replace or modify such Software so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to NuoDB, then it may (iii) terminate this Agreement upon written notice to Licensee and, after return of the Software, refund the unused Subscription Fees pre-paid by Licensee.
b. Exclusions. NuoDB shall have no liability or obligation hereunder with respect to any claim based upon (i) any use of Software not strictly in accordance with this Agreement, (ii) any use of Software in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Software not created by NuoDB, (iv) Software that complies with Licensee's specific requirements, (v) Licensee's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Licensee or any of its affiliates has an interest.
c. Entire Liability. The foregoing states NuoDB's entire liability, and Licensee's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation.
8.3 Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, OR IN THE CASE OF (I) BREACH OF SECTION 5 (CONFIDENTIALITY) OR SECTION 6 (PROPRIETARY RIGHTS) OR (II) LIABILITIES PURSUANT TO SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY (OR LICENSOR'S LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COSTS OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, (D) IN THE CASE OF LICENSOR (AND ITS LICENSORS), AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (E) IN THE CASE OF LICENSEE, AGGREGATE DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAYABLE HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10.1 Term. This Agreement shall commence upon acceptance of this Agreement by Licensee and, unless terminated earlier as provided herein, terminate upon any expiration or termination of the Subscription Term.
10.2 Termination for Cause. This Agreement may be terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non- payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.3 Effects of Termination. Upon termination of this Agreement for any reason, the License and all other rights, obligations and licenses of the parties hereunder shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination (including without limitation, payment obligations) and any remedies for breach of this Agreement; (b) Licensee shall stop using, de-install and destroy all copies of the Software, Documentation and Applications, stop providing Licensed Services and stop making other Licensed Distributions; and (c) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.3.
11.1 Order of Precedence. In the event of any conflict between the terms of this Software License Agreement, the Exhibits to this Software License Agreement, a SOW or the Sales Order the following order of precedence shall apply with (1) being the highest, (1) the Sales Order, (2) the Exhibits, (3) the SOW, (4) the Software License Agreement; and (5) the Professional Services Addendum.
11.2 Entire Agreement. This Agreement (together with the Sales Order) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). In the event of a conflict between this Agreement and the Sales Order, the Sales Order shall control. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. No amendment, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
11.3 Publicity. Licensee hereby consents to (i) NuoDB's inclusion of its name and logos in connection with in customer listings and marketing materials that may be published as part of NuoDB's marketing efforts, (ii) the issuance of a press release regarding the existence of the license relationship between NuoDB and Licensee, and (iii) the creation of a case study regarding Licensee's usage of NuoDB's products. NuoDB agrees to consult with Licensee before issuing any such press release or case study. Upon NuoDB’s reasonable request, Licensee further agrees to serve as a reference for NuoDB’s customers and prospects and for Gartner, Inc. and other research and advisory entities reasonably identified by NuoDB.
11.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between United States and foreign laws, regulations and rules, United States laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Unless waived by NuoDB in its sole discretion, the exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts having jurisdiction over NuoDB's facility, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.5 Remedies. The failure of either party to enforce its rights or remedies under this Agreement at any time or for any period will not be construed as a waiver of such rights or remedies, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Each party agrees that, in the event of any breach or threatened breach of Section 5 or Section 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety.
11.6 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein, in the Sales Order or at such other address designated by written notice. Notices will be deemed duly given and effective: when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; or when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.
11.7 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, not to be unreasonably withheld. However, without consent, (i) NuoDB may subcontract performance of the Support Services and other services in connection with its obligations under this Agreement, provided that NuoDB will remain responsible for the overall performance of such subcontracted services, and (ii) NuoDB may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
11.8 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
11.9 Government. If any user of the Software or Documentation is an agency, department or other entity of the United States Government, then the use, duplication, reproduction, modification, release, disclosure or transfer of the Software or Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software, the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
11.10 Counterparts. This Agreement may be executed in one or more counterparts and by different parties in separate counterparts. All of such counterparts shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other party. This Agreement may be executed by the parties and transmitted electronically and, if so executed and transmitted, shall be for all purposes as effective as if the parties had delivered an executed original document.
IN WITNESS WHEREOF, intending to be legally bound, the parties have caused their duly authorized officers to execute this Software Subscription Agreement as a sealed instrument, as of the Effective Date.
NuoDB, Inc. Licensee:
This Professional Services Addendum (the “Addendum”) shall apply to any Professional Services procured by the Licensee pursuant to a Statement of Work. Capitalized terms used but not otherwise defined in this Addendum shall have the meanings assigned to them in the Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
NuoDB shall provide consulting, integration, implementation, design, development, assessments, training, reviews and other work under the terms and conditions of this Agreement (the “Services”), as specified in one or more supplemental Statements of Work that NuoDB and Licensee may enter into from time to time (each, an “SOW”).
2.1 Payment. In consideration of the Services rendered under this Agreement, Licensee shall pay NuoDB as set forth in each SOW. Except as otherwise provided, all fees are quoted in United States dollars.
2.2 Time and Materials. Unless otherwise specified in an SOW, Licensee shall pay fees for actual time spent and materials purchased for all Services performed by NuoDB in accordance with the NuoDB’s then-current standard rates and procedures.
2.3 Invoicing and Payment. Unless otherwise set forth in an SOW, NuoDB will invoice Licensee regularly according to its standard practices for professional or client services, and all fees and charges are due net 30 days from the invoice date. Unless otherwise stated in an SOW, all payments made under this Agreement shall be in United States dollars.
2.4 Pre-Payments. If Licensee pays NuoDB for any Services under an executed SOW before NuoDB performs such Services, then such pre-payments expire six months after the execution date of the applicable SOW. Licensee may not apply the pre-payments towards another SOW, and all such pre-payments are non-refundable.
2.5 Overdue Payments. Any payment not received from Licensee by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at NuoDB's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.6 Taxes. Unless otherwise stated in an SOW, NuoDB's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Licensee is responsible for paying all Taxes, excluding only taxes based on NuoDB's income. If NuoDB has the legal obligation to pay or collect Taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee to NuoDB unless Licensee provides NuoDB with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.1 Acceptance. Upon delivery of the Services, or a portion thereof, NuoDB will deliver an Acceptance Form to Licensee. Acceptance or rejection must be made by the Licensee within 5 business days of receipt, unless an alternative time frame is mutually agreed upon. If Services are rejected, the Licensee must document in reasonable detail on the Acceptance Form the reason for rejection. If the Acceptance Form is not signed within the time period stated above, the Services specified in the Acceptance Form shall be deemed satisfactory and accepted by the Licensee and Licensee shall be obligated to make payment as provided in this Agreement and the applicable Statement of Work. Notwithstanding the foregoing, signature of the time sheet of a NuoDB consultant(s) shall be deemed acceptance of work performed by Consultant(s) in connection with such time sheet.
3.2 Modification. If Licensee wishes to change the services covered by a Statement of Work or wishes to obtain additional services not listed in a Statement of Work (the “Additional Services”), Licensee, through its authorized representative, shall so advise NuoDB, and NuoDB may perform the Additional Services at its discretion. Upon NuoDB’s receipt of Licensee’s request for the Additional Services, the Licensee and NuoDB shall use reasonable, good faith efforts to mutually agree upon the scope of the Additional Services by completing a change order form. If NuoDB performs the Additional Services prior to completion of such change order form, Licensee agrees that NuoDB may expend whatever time NuoDB deems reasonable and necessary to perform the Additional Services and that the charges for such services and other terms and conditions of performance shall be governed by this Agreement.
4.1 Work Product. “Work Product” means the materials, including documentation and customized software, completed by NuoDB under an SOW and any modifications or improvements to the NuoDB software, excluding any of Licensee’s Confidential Information that may be included in such materials.
4.2 Ownership of Work Product and Other Intellectual Property. Unless otherwise specified in an SOW, NuoDB is the exclusive owner of all Work Product (including any revisions, modifications and enhancements thereto) and any other software, specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that NuoDB or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto. This Agreement is not a sale and does not transfer to Licensee any title or ownership in and to the Work Product.
4.3 Suggestions. Without limiting anything in Section 4.2 above, Licensee hereby grants NuoDB a royalty-free, worldwide, perpetual, sublicenseable license and right to use any suggestions, ideas, inventions, information, processes, know-how and/or techniques expressed in any information provided by Licensee or its authorized users (“Users”) in connection with the Services (collectively, “Licensee Suggestions”), including the right to make, have made, sell, have sold, offer for sale, import, have imported and lease products and services which practice and/or embody Licensee Suggestions. For the avoidance of doubt, Licensee Suggestions excludes the tangible expression of such Licensee Suggestions provided or submitted by Licensee or its Users.
4.4 License for Work Product. Subject of the terms of this Agreement and upon receipt by NuoDB of full payment of fees and expenses due under the applicable Statement of Work, NuoDB grants to Licensee a non-assignable, non-exclusive, non-transferable license to use the Work Product solely in connection with the software licensed from NuoDB under the Agreement during the Subscription Term applicable to such software. Except as expressly set forth in this Agreement, Licensee shall not (a) use the Work Product for itself or for the benefit of any other person or entity, or permit any third party to make such use, and (b) copy, modify, transcribe, store, translate, sell, lease, or otherwise transfer the Work Product, in whole or in part.
a. Restrictions on Access, Copying and Sublicensing. Except as expressly permitted by this Agreement, Licensee shall not (a) modify, copy or create derivative works based on the Work Product; (b) disassemble, reverse engineer, or decompile the any Work Product, or (c) access or use the Work Product in any manner not expressly permitted under this Agreement or the Software License Agreement.
b. Third Party and Other Proprietary Software. If the Work Product contains or is bundled with third party software or other proprietary NuoDB software, then (a) such software is governed by NuoDB’s standard agreement for such software or other applicable license agreement under which use such software is made available to Licensee, and (b) Licensee may use such third party software or other proprietary NuoDB software solely for the purpose such software is included with the Work Product.
c. No Other Rights; Assignment. Other than as expressly set forth in this Agreement, no license or other rights in or to the Work Product or Licensee Suggestions are granted to Licensee, and all such licenses and rights are hereby expressly reserved. Licensee hereby assigns and will assign, and will cause each of its Users to assign, all right, title and interest in and to the Work Product and Licensee Suggestions, other than the limited license rights granted in this Agreement.
5.1 Services Warranty. NuoDB warrants that the Services it provides hereunder will be of a professional quality conforming to generally accepted industry standards and practices.
5.2 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, NUODB MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NUODB HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTIBILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LICENSEE’S SOLE REMEDY FOR BREACH OF SUCH EXPRESS LIMITED WARRANTIES IS RE-PERFORMANCE OR REFUND AS SET FORTH IN THIS SECTION 5.
6.1 Non-Solicitation. During the term of each SOW and for a period of one year thereafter, Licensee shall not, either directly or indirectly (whether through its employees, independent contractors, consultants or otherwise), employ or engage, or solicit for employment or engagement, any employee, independent contractor, consultant, agent or representative assigned or recommended by NuoDB to perform Services under the applicable SOW.
6.2 Insurance. NuoDB shall maintain, at its own expense, sufficient insurance to cover its performance of Services hereunder, including but not limited to workers’ compensation insurance when required by law.
6.3 NuoDB Personnel. NuoDB shall ensure that its employees and contractors performing the Services are reasonably qualified and experienced. NuoDB shall use its best efforts to replace any NuoDB employee or contractor that Licensee reasonably requests to be replaced. NuoDB conducts background investigations of all of its employees.
6.4 Timely Performance. Licensee acknowledges and agrees that the timely performance by NuoDB of its obligations hereunder is dependent upon Licensee performing its obligations under this Agreement and any SOW, and that any delay or failure to perform by Licensee shall extend the time for NuoDB to perform on a day-for-day basis. Licensee will also perform the obligations specified as “Licensee Obligations” (or other similar heading) in any Statement of Work.
7.1 Termination. This Addendum terminates upon the earliest of:
(1) 30 days after written notice from one party to the other of the defaulting party’s material breach of this Agreement, which breach is not cured within such 30-day period;
(2) by either party for any reason or no reason 30 days after written notice to the other party;
(3) by either party immediately upon written notice to the other party of a material breach of Sections 4 or 8;
(4) immediately upon expiration or termination of the Agreement; and
(5) immediately upon written notice by either party to the other if the other party (a) becomes insolvent; (b) files a petition, or has a petition filed against it, under any laws relating to insolvency, and the related insolvency proceedings are not dismissed within 60 days after the filing of such petition; (c) enters into any voluntary arrangement for the benefit of its creditors; (d) appoints, or has appointed on its behalf, a receiver, liquidator or trustee of any of such party’s property or assets; or (e) ceases to carry on business in the ordinary course.
7.2 Outstanding Fees. Termination shall not relieve Licensee of the obligation to pay any fees accrued or payable to NuoDB prior to the effective date of termination.
7.3 Survival. The following provisions of this Addendum shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5.2, 6.1 and 7.
7.4 Effect of Termination for Breach. If Licensee materially breaches Section 4 above, then, in addition to any other available remedies under this Agreement, NuoDB may terminate Licensee’s license to use the Work Product upon written notice to Licensee, in which case Section 4.4 above shall become void and of no further force or effect. In such an event, promptly upon NuoDB’s request Licensee shall, at NuoDB’s option, either return to NuoDB, or destroy and certify in writing to NuoDB that it has destroyed, the original and all copies, in whole or in part, in any form, of the Work Product and any other Confidential Information disclosed by NuoDB hereunder.
[End of Professional Services Addendum]