THE ORIENTDB SUBSCRIPTION AND SERVICE AGREEMENT’S TERMS AND CONDITIONS HAVE CHANGED AS OF MAY 22, 2018 TO THE BELOW. OrientDB is a CallidusCloud company.
Please read this Agreement carefully. By selecting “I AGREE”, or accepting a Schedule (or other order form) that incorporates these terms by reference, you confirm your agreement to these terms on behalf of the organization you are registering, and you confirm that you personally are authorized to accept this agreement on that organization’s behalf. This is a binding legal agreement.
This OrientDB Software License Agreement (the “Agreement” or “Terms and Conditions”) governs the use of the OrientDB Software by the organization registered by you (“Customer”), as licensed by OrientDB Ltd (“OreintDB”) and will be effective when accepted by Customer in connection with separate Schedules. This Agreement combined with the Schedule constitutes a complete binding legal agreement between OrientDB and Customer and sets forth the terms and conditions that govern certain software (the “Software”) provided by OrientDB, its Affiliates, agents, or contractors to Customer – please read carefully. The terms of this Agreement are subject to change after 30 days’ notice is given by OrientDB via this website, and as such the Customer is solely responsible for checking this website for changes to this Agreement. This Agreement will supersede any prior discussions or representations regarding the Software. If there is a conflict between the terms and conditions of this Agreement and a Schedule, the terms and conditions of the Schedule will prevail, but only with respect to the Software licensed through that particular Schedule. The parties agree as follows:
Article 1. Customer’s Use of the Software
1.1 Software License. Subject to the terms and conditions of this Agreement, during the applicable Term, OrientDB hereby grants Customer a limited, non-exclusive, non-transferable, limited term license (without the right to sublicense): (a) to install and use the Software solely for Customer’s internal operations on the designated servers specified on the Schedule or, on a temporary basis, on a backup system if such equipment is inoperative, consistent with the limitations specified or referenced in this Agreement and (b) to copy the Software for archival or backup purposes, provided that all titles and trademark, copyright and restricted rights notices are reproduced on all such copies. OrientDB will make available to Customer a copy of the Software pursuant to the applicable Schedule. OrientDB will provide Customer with any update or bug fix to the Software that it makes generally available to its customers of the Software. If Customer purchases annual Support for the Software, OrientDB will provide the support services as described in the Support Policy attached as Exhibit A. The use of the Software is subject to user and usage limits, including for example, the quantities specified in the Schedule.
1.2 Customer Obligations. Customer may enable access of the Software for use only by Authorized Persons solely for the internal business purposes of Customer and its Affiliates in accordance with this Agreement and not for the benefit of any third parties. Customer is responsible for all Authorized Persons’ use of the Software and compliance with this Agreement and the applicable Schedule(s). Customer shall: (a) ensure that its employees receive any required disclosures and appropriate training concerning the use of the Software; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and notify OrientDB promptly of any such unauthorized access or use; and (c) use the Software only in accordance with this Agreement, the Documentation and the applicable Law. Customer shall not: (i) use the Software in violation of applicable Laws and regulations; (ii) in connection with the use of the Software, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) relicense, sublicense, rent or lease the Software or use the Software for third-party training, commercial time-sharing or service bureau use; (iv) reverse engineer, disassemble or decompile the Software (or enable or permit any third party to do the same), except to the extent expressly permitted by applicable law and then only after Customer has notified OrientDB in writing of its intended activities; (v) use the Software or Documentation in order to build any commercially available product or service; or (vi) copy any features, functions, integrations, interfaces or graphics of the Software or Documentation. Customer shall be liable for the acts and omissions of all Authorized Persons and Customer Affiliates relating to this Agreement.
Article 2. Reports
2.1 Reports. Customer will keep and maintain complete and accurate records of each copy of the Software and any and all pertinent distribution information related to each such copy. Customer will, upon OrientDB’s request, provide reports to OrientDB specifying the cumulative total of all copies and all other reasonably pertinent distribution information. All reports will be delivered to OrientDB within thirty (30) days of such request.
2.2 Verification. Customer agrees that OrientDB may, upon thirty (30) days’ prior written notice, enter Customer’s premises to verify Customer’s compliance with the provisions of this Agreement. OrientDB’ inspections will be limited to (a) one (1) annual inspection (unless OrientDB believes that it has just cause for multiple inspections); (b) Customer’s normal business hours; and (c) those records pertaining to the Software licensed hereunder. OrientDB’s rights of inspection will remain in effect through the period ending six (6) months from the termination or expiration of this Agreement and any applicable license hereunder.
Article 3. Fees and Payment
3.1 Fees. The License Fees shall be set out in each Schedule. OrientDB will also invoice Customer at the time Customer adds any enhanced or additional Software or if Customer has increased usage by exceeding the users, Payees (or other metric or stated usage assumption described in the Schedule), as applicable, beyond those set out in a Schedule.
3.2 Payment Terms. The License Fees will be due and payable pursuant to the provisions of an applicable Schedule in the amounts set forth in each such Schedule. Thereafter, OrientDB will invoice Customer annually in advance for the License Fees under a Schedule. OrientDB is entitled to charge interest on any sum that is not paid when due at a monthly rate of 1.5% or lesser maximum allowable. However, Customer’s payment will not be considered overdue for any unpaid amounts disputed in good faith on an invoice-by-invoice basis.
3.3 Taxes. Excluding taxes based on OrientDB’s income, Customer is liable for all taxes relating to the license for the Software, except to the extent Customer has provided OrientDB with a valid tax exemption or direct pay certificate.
Article 4. Confidentiality
4.1 Confidential Information Defined.
4.2 Confidentiality Obligations. During the course of the parties’ relationship, each party may have access to Confidential Information of the other party. Neither party shall disclose any Confidential Information of the other party, orally or in writing, to any third party without the prior written consent of the other party, except as provided in this Agreement. The parties shall protect each other’s Confidential Information using commercially reasonable administrative, physical and technical safeguards. Neither party shall use the other party’s Confidential Information for any purpose other than lawful performance of this Agreement.
4.3 Disclosure to Third Parties and as Required by Law. Recipient may provide access to and use of Discloser’s Confidential Information only to those third parties that: (a) provide services to Recipient concerning Recipient’s use of Discloser’s Confidential Information; (b) have a need to use and access the Confidential Information; and (c) have agreed to substantially similar non-disclosure obligations as those contained in this Agreement. Recipient shall be responsible for the use by its third parties of the Discloser’s Confidential Information. To the extent Recipient may be required by Law to disclose Confidential Information, Recipient may make such disclosure, provided that Recipient (i) to the extent permitted by Law, notifies Discloser of such requirement prior to disclosure and (ii) makes diligent efforts to avoid and limit disclosure. Notwithstanding Recipient’s conformance with the procedures set forth in the prior sentence, the disclosure required by Law shall not itself cause the information to lose its confidential character unless the information ceases to be Confidential Information as a result of one of the reasons specifically set forth in Section 4.1.B above.
4.4 Injunctive Relief and other Remedies. Each party understands that Confidential Information constitutes valuable business assets of Discloser and its disclosure may irreparably harm Discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by Recipient, Discloser shall be entitled to seek injunctive relief.
Article 5. Proprietary Rights
5.1 Ownership and Reservation of Rights to OrientDB Technology. OrientDB and its licensors own all right, title and interest in and to the Software, Documentation, and other OrientDB Technology, as well as any modifications that are derivative works thereof. Subject to the limited rights expressly granted hereunder, OrientDB reserves all rights, title and interest in and to the Software, and Documentation, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
Article 6. Term, Termination, Suspension, and Dispute Resolution
6.1 Term. This Agreement shall have a term commencing as of the Effective Date and ending upon expiration or termination of all Schedules issued hereunder. Each Schedule shall have a term commencing on its effective date and, unless otherwise set forth in the Schedule or upon the termination of the Schedule or this Agreement shall expire three (3) years after its effective date. Each Software hereunder is limited in duration to the limited Term set forth in the Schedule.
6.2 Termination for Default. Either party may terminate this Agreement in its entirety or any specific Schedule if the other party breaches any material term of these General Terms or the applicable Schedule and does not cure such material breach within forty-five (45) days of receiving a Termination Notice.
6.3 Effect of Expiration or Termination. When this Agreement or any Schedule expires or is terminated, Customer shall pay all money due to OrientDB up to the expiration or termination date and any payments that may become due pursuant to this Agreement subsequent to such expiration or termination. Customer also agrees to immediately stop using the Software and to remove all copies of the Software from its servers upon expiration or termination of the Schedule(s) and/or Agreement and both parties agree to stop using the Confidential Information of the other party and to return or destroy (at the party’s discretion) all the copies of the other party’s Confidential Information. To the extent the Recipient is required to keep a copy of any of the Discloser’s Confidential Information as required by applicable law, the Recipient shall continue to treat such Discloser’s Confidential Information as Confidential Information in accordance with the terms of this Agreement.
6.4 Dispute Resolution. Prior to instituting formal proceedings, the parties shall attempt to resolve all disputes arising out of or relating to this Agreement informally. To invoke this process a party shall appoint a designated executive and request that the other party do the same. The other party shall make such appointment within five (5) days of receipt of the request. The designated executives shall then have up to thirty (30) days to attempt in good faith to resolve the matter. The informal dispute resolution process shall terminate at the end of the thirty (30) day period unless extended by mutual agreement. Disputes not resolved by informal dispute resolution as provided in this section will be resolved by litigation unless the parties mutually agree to an alternative dispute resolution method such as arbitration.
Nothing in this section shall prevent, or be construed as preventing, a party from (a) instituting formal proceedings to avoid the expiration of any applicable limitations period, or (b) seeking injunctive or other equitable relief in a court of appropriate jurisdiction.
The parties agree that all negotiations pursuant to this section will be confidential and therefore treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
Article 7. No Warranties Except as Expressly Provided in a Schedule
7.1 OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN EXHIBIT B, IF ANY, and to the maximum extent permitted by applicable law, ORIENTDB MAKES NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT OR APPLICABLE SCHEDULE(S), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Article 8. Indemnification
8.1 Indemnification by OrientDB. OrientDB will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Software in accordance with this Agreement and the applicable Schedule infringes or misappropriates such third party’s United States or Canadian patent, copyright or trademark, or its trade secret(s) (a “Third Party Intellectual Property Claim Against Customer”), and will indemnify Customer from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Third Party Intellectual Property Claim Against Customer, provided Customer (a) promptly gives OrientDB written notice of the Third Party Intellectual Property Claim Against Customer, (b) gives OrientDB sole control of the defense and settlement of the Third Party Intellectual Property Claim Against Customer (except that OrientDB may not settle any Third Party Intellectual Property Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives OrientDB all reasonable assistance, at OrientDB’s expense. If OrientDB receives information about an infringement or misappropriation claim related to the Software, OrientDB will either, in its discretion and at no cost to Customer, (i) modify the Software so that it no longer infringes or misappropriates, without materially degrading the functionality as described in the Documentation, (ii) obtain a license for Customer’s continued use of that Software in accordance with this Agreement, or (iii) terminate Customer’s license for that Software upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated license. The above defense and indemnification obligations do not apply to the extent a Third Party Intellectual Property Claim Against Customer arises from or is related to Customer’s breach of this Agreement, modifications to the Software performed by parties other than OrientDB, or combination of the Software with other materials not provided by OrientDB.
8.2 Indemnification by Customer. Customer will defend OrientDB against any claim, demand, suit or proceeding made or brought against OrientDB by a third party alleging that Customer’s use of the Software in breach of this Agreement and the applicable Schedule, infringes or misappropriates such third party’s intellectual property rights (a “Third Party Intellectual Property Claim Against OrientDB”), and will indemnify OrientDB from any damages, reasonable attorney fees and costs finally awarded by a court of competent jurisdiction against OrientDB as a result of, or for any amounts paid by OrientDB under a court-approved settlement of, a Third Party Intellectual Property Claim Against OrientDB, provided OrientDB (a) promptly gives Customer written notice of the Third Party Intellectual Property Claim Against OrientDB, (b) gives Customer sole control of the defense and settlement of the Third Party Intellectual Property Claim Against OrientDB (except that Customer may not settle any Third Party Intellectual Property Claim Against OrientDB unless it unconditionally releases OrientDB of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
8.3 Entire Indemnification. This Article 8 sets forth each party’s liability and the other party’s sole and exclusive remedy for indemnification related to a Third Party Intellectual Property Claim Against Customer or a Third Party Intellectual Property Claim Against OrientDB.
Article 9. Limitation of Liability
9.1 Direct Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, A PARTY’S AGGREGATE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION FIRST AROSE (“FEE EXPOSURE”), EXCEPT THAT THE DOLLAR LIMIT IN THIS SECTION 9.1 WILL NOT APPLY TO DAMAGES ARISING FROM A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN ARTICLE 8 WHICH SHALL BE CAPPED AT TWO TIMES THE FEE EXPOSURE. THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER ARTICLE 3.
9.2 Exclusion of Consequential and Related Damages. EXCEPT TO THE EXTENT THAT THE DAMAGES OR COSTS SET FORTH IMMEDIATELY ABOVE IN SECTION 9.1 ARE DEEMED CONSEQUENTIAL OR INCIDENTAL DAMAGES, NEITHER PARTY (INCLUDING IN THE CASE OF ORIENTDB, ANY OF ITS SUPPLIERS OR THIRD PARTY LICENSORS) SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, LOST PROFITS OR REVENUES, COVER OR PUNITIVE DAMAGES, HOWEVER ARISING AND EVEN IF THE PARTY AGAINST WHOM THE CLAIM IS MADE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Essential Elements of Agreement.
the foregoing limitations of liability and disclaimers of damages apply regardless of the form in which an action (legal, equitable or otherwise) is brought, whether in contract, tort, or otherwise. the limitations of liabilities, disclaimers of warranties, exclusivity of remedies, and other limitations set forth herein are an essential element of the bargain between the parties (without which the transactions CONTEMPLATED by this Agreement would not occur) and will apply even if a remedy fails in its essential purpose.
Article 10. Miscellaneous
10.1 Notices. All notices required or permitted by this Agreement shall be in writing and shall be effective upon delivery (i) to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party; and (ii) also to the attention of each party’s General Counsel.
10.2 Assignment. Neither party shall assign or transfer any of its rights or delegate any of its duties under this Agreement, whether by operation of law, as a result of a change of control or otherwise, without the other party’s prior written consent, which consent the other party shall not unreasonably withhold, delay or condition, and any purported assignment or transfer shall be null and void. Notwithstanding the above, either party may assign the Agreement as part of a general assignment to a successor-in-interest who is not a direct competitor of the non-assigning party without the other party’s prior written consent.
10.3 Survivability. The terms of this Agreement, which by their nature one would reasonably intend to survive this Agreement shall survive it, including terms addressing fees (Article 3), confidentiality (Article 4), ownership (Article 5), termination (Article 6), representations and warranties (Article 7), indemnity (Article 8), limitation of liability (Article 9), and the applicable miscellaneous sections in Article 10.
10.4 Law and Jurisdiction. California law shall govern this Agreement, excluding its conflict of laws provisions. The provisions of any federal or state Uniform Computer Information Transactions Act shall not apply. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The federal and state courts in the Northern District of California shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Software.
10.5 Article and Section Headings. The Article and Section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
10.6 Force Majeure. Except for Customer’s obligation to pay OrientDB or to assume obligations for taxes, neither party shall be liable for any failure to perform due to causes beyond its reasonable control, such as war, terrorism, civil commotion, Internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
10.7 Severability. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision.
10.8 Waivers. The failure by a party to exercise or enforce any right hereunder shall not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.
10.9 Publicity. OrientDB may add Customer’s name and logo to OrientDB’s published list of customers so as long as Customer continues to be a licensee of the Software.
10.10 Modifications, Additional Terms, Entire Agreement, Amendment. No purchase order or other document that purports to modify or supplement this Agreement shall add to or vary the terms of this Agreement. All proposed variations or additions, whether submitted by OrientDB or Customer, are objected to and deemed immaterial unless otherwise agreed to in a writing signed by both parties. This Agreement constitutes the entire agreement and understanding between the parties concerning Customer’s license to the Software and may not be modified by custom or usage. This Agreement replaces and supersedes all prior oral or written understandings, communications and representations between the parties with respect to the Software. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties.
10.11 Export. The Software, documentation and services delivered by us to you are subject to export control under the U.S. Export Administration Regulation and may be subject to the trade laws of other countries. You agree to comply fully with all applicable export and import laws and not download or otherwise export or re-export the Software except in full compliance with such applicable laws and regulations. Export compliance obligations will survive expiration or termination of this Agreement.
10.12 Restricted Rights. Any use of, duplication by, or disclosure to the U.S. Government is subject to the terms of this Agreement and is furnished as unpublished, copyrighted, trade secret, proprietary data with Restricted Rights in accordance with FAR 52.227-19 Commercial Computer Software. The Software manufacturer is OrientDB Ltd.
Article 11. Definitions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of fifty-one percent (51%) of the voting interests of the subject entity.
“Authorized Persons” means an individual or entity that is authorized by Customer to use the Software, or to whom Customer (or OrientDB at Customer’s request) have supplied a user identification and password. Authorized Persons may include, for example, Customer’s employees, consultants, and contractors. Authorized Persons exclude competitors of OrientDB.
“OrientDB Technology” means OrientDB proprietary technology, including the Software, hardware designs, copyrights, trademarks, patents, trade secrets, software tools, algorithms, user interface designs, architectures, products, documentations, the designs and schema for any network or system connectivity and related intellectual property worldwide and whether in printed, written, electronically reproduced or any other form and whether owned by OrientDB or licensed to OrientDB and all enhancements, derivatives, improvements, modifications or extensions of such technology conceived, reduced to practice or developed during the term of this Agreement.
“OrientDB” means OrientDB Ltd., its subsidiaries and Affiliates.
“Confidential Information” has the definition provided in Section 4.1.
“Discloser” has the definition provided in Section 4.1.A.
“Documentation” means the published user manuals, whether in print or electronic form, or on-line help functions for the Software, as updated from time to time.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“License Fee” means the fee OrientDB charges to Customer for the Software that is detailed in each Schedule.
“Recipient” has the definition provided in Section 4.1.A.
“Schedule” means an order form, (whether titled a Schedule, an Order Form, or other title,) along with all of its exhibits and attachments, which is issued pursuant to or refer to this Agreement and is executed by Customer and OrientDB.
“Term” means the duration of Customer’s license to the Software as set forth in the Schedule.
“Termination Notice” means prior written notice (consistent with Section 10.1) by one party to the other of the intent to terminate the license to the Software under any or all Schedules.
Last updated 05-22-2018
Latest Revision: January 2018
|Priority Level||First Response Goal||Remedy: Service Credits|
GMT Business Hours 9:00 AM-7:00 PM Monday through Friday
|1 – Critical. Due to an error, the Production Environment Software or Server Program is down or seriously impacted, or the Customer data is lost or destroyed, and there is no workaround currently available.||3 Business hours*||2 hours||Maximum of 1% per month in the month if this Response Goal is missed.|
|2 – High. Due to an error, the Production Environment Software or Server Program is moderately affected on minor components. There is no workaround currently available or the workaround is cumbersome to use.||6 Business hours*||4 hours||Maximum of 1% Service Credit for the month this Response Goal is missed.|
|3 – Medium. The error is not critical – no data has been lost, and the system has not failed. The error has been identified and does not prevent normal operation, or the situation may be temporarily circumvented using an available workaround.||24 Business hours*||24 hours||Maximum of 1% Service Credit for the month this Response Goal is missed.|
|4 – Minor/Trivial. Non-critical errors, general questions, requests for enhancements to the Software or Server Programs.||72 Business hours*||72 hours||N/A|
*For Silver Level 10/5 Support, the response time is based upon available business hours.
|Data Quality||Imported data will be clean, correct, in OrientDB’s standard format, and able to be processed|
|Processing/Usage levels||Customer will remain within Servers licensed (all environments)|
|Issue Reporting||Customer will report issues in a timely manner using OrientDB Issue Tracker, integrated with GitHub. Customers must provide a list of GitHub accounts for all the developers that will access the platform.|