Subscription and Services Agreement March 2016

ORIENTDB SUBSCRIPTION AND SERVICES AGREEMENT
Latest Revision: March 2016

This Subscription and Services Agreement (“Agreement”) is entered into by, as applicable, the customer signing this Agreement or any document that references this Agreement or that accepts this Agreement electronically (“Customer”) and OrientDB Ltd. (“Company”). Capitalized terms have the meaning set forth in Section 10 or in the Agreement. This Agreement is effective as of the latest of the two signature dates below (“Effective Date”).

1. Scope of Work.

Company shall provide the applicable Subscriptions, the Support and the Services set forth on the Order Form or in a SOW signed by both parties. Exhibit A describes the Subscriptions provided by Company, Exhibit B describes the Support provided by Company and Exhibit C describes the Services provided by Company.

2. Fees.

Customer shall pay Fees set forth on the Order Form. In addition, Customer shall reimburse Company for any expenses incurred by Company personnel in providing the Services. Customer shall pay undisputed Fees and expenses as set forth on an Order Form. If Customer fails to pay Fees in accordance with this Section, Company may suspend fulfilling its obligations under this Agreement until such payment is received by Company. Customer will pay applicable taxes and similar charges, including sales, usage, excise and value added taxes. Nothing in this Agreement requires either party to pay income taxes or similar charges of the other party. If any applicable law requires Customer to withhold amounts from any payments to Company under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Company with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Company receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Company would have received and retained absent the required deduction or withholding.

3. Publicity and Confidentiality.

3.1 Neither party will disclose, market or advertise to third parties the terms of this Agreement (including the Fees paid hereunder) without the prior written consent of the other party. Company will be permitted to reference its relationship with Customer on its website, during discussions with analysts, meetings with the press, customer briefings, or in regulatory filings. Customer will work with Company to release a mutually agreed upon press release.
3.2 For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” Confidential Information means all information concerning the parties’ business including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) the terms of any agreement between Company and Company and the discussions, negotiations and proposals related to that agreement. Confidential Information disclosed to the other party must be clearly identified. Written Confidential Information must be clearly marked in a conspicuous place with an appropriate legend identifying the information as confidential. Confidential Information that is not written must be identified before, during, or promptly after presentation or communication. The Recipient does not have an obligation to protect Confidential Information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient. If Confidential Information is required to be produced by law, court order, or governmental authority, the Recipient must immediately notify the Discloser of that obligation. The Recipient will use the Confidential Information only to further the relationship between the parties. Confidential Information may not be disclosed to any third party without the written consent of the Discloser. At the Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to the Discloser or destroyed by the Recipient. At the request of the Discloser, the Recipient will furnish a certificate, signed by an officer of the Recipient, certifying that any Confidential Information not returned to the Discloser has been destroyed. The Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that this right to Residuals does not represent a license under any intellectual property and/or proprietary rights of disclosing party.

4. Intellectual Property.

4.1 Company shall own all intellectual property and proprietary rights in the: (i) Software, Documentation, and related works, including but not limited to derivative work of the foregoing; and (ii) deliverables provided by Company as part of the Services (“Deliverables”). Company grants to Customer a nonexclusive, non-transferrable, royalty-free license to use any Deliverables for Customer’s internal purposes.
4.2 Customer grants to Company a nonexclusive, non-transferable, royalty-free license to use Customer’s materials provided by Customer to Company during the Term of this Agreement solely for the purpose of performing the Services for Customer.

5. Warranty and Disclaimer.

5.1 Company warrants that the Services and Support shall be performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services and Support. If Customer believes there has been a breach of this warranty, Customer must notify Company in writing promptly following delivery of the Services or Support stating in reasonable detail the nature of the alleged breach. If there has been a breach of this warranty, then Company’s sole obligation, and Customer’s exclusive remedy, shall be for Company to correct or re-perform, at no additional charge, any affected Services or Support to cause them to comply with this warranty.
5.2 EXCEPT AS PROVIDED IN SECTION 5.1 ABOVE, THE SOFTWARE, SUPPORT, AND SERVICES INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, NEITHER THE SOFTWARE NOR THE UPDATES ARE SPECIFICALLY DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS.

6. Limitation of Liability.

6.1 IN NO EVENT WILL Company BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED.
6.2 FOR ENTERPRISE SUBSCRIPTIONS ONLY IN NO EVENT WILL Company’S CUMULATIVE LIABILITY EXCEED THE AMOUNT OF THREE (3) TIMES THE TOTAL FEES PAID TO Company UNDER THIS AGREEMENT BY CUSTOMER FOR Company’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT.
6.3 FOR ANY AND ALL OTHER CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT NOT COVERED BY SECTION 6.1 OR 6.2, IN NO EVENT WILL Company’S CUMULATIVE LIABILITY EXCEED THE AMOUNT OF THE TOTAL FEES PAID TO Company UNDER THIS AGREEMENT BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING ANY SUCH CLAIM).
6.4 IN NO EVENT SHALL Company BE LIABLE TO CUSTOMER FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY CUSTOMER OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS PROVIDED IN THE APACHE LICENSE, AS FOUND AT https://www.apache.org/licenses/LICENSE-2.0.
6.5 THE PROVISIONS OF THIS SECTION 6 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND Company. Company’S FEES FOR THE SUBSCRIPTIONS, SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.

7. Indemnification.

7.1 Customer Indemnification. Customer will defend and indemnify OrientDB from and against all third party claims to the extent resulting from the infringement of a third party’s intellectual property or other right by software, hardware, content, or data used by Customer in connection with the Software or any subscription. Customer will have no obligation to defend or indemnify OrientDB if the claim is based on OrientDB’ unauthorized changes to Customer’s content, data or other information.

7.2 OrientDB Indemnification. If Customer purchases an Enterprise Subscription, subject to the terms of this Agreement, OrientDB will defend and indemnify Customer from and against all third party claims to the extent resulting from the Software’s infringement of a third party’s intellectual property right. OrientDB will not be obligated to defend or indemnify Customer if the claim is based on: (i) combination of the Software with other software, content, data or business process not contemplated by documentation, (ii) use of any older release of the Software when use of a newer revision would have avoided the infringement, (iii) any modification of the Software made by anyone other than OrientDB, (iv) OrientDB’s compliance with any materials, designs, specifications or instructions provided by Customer, or (v) any third party open source software included within the Software.
7.3 THIS SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND Company’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

8. Term and Termination.

8.1 This Agreement shall be in effect until it is terminated as provided in this Section 8.1 (the “Term”). Unless otherwise stated on an Order Form, each Subscription shall have a term of one (1) year. Thereafter, the Subscription shall automatically renew for successive, one (1) year terms. Either party may elect not to renew a Subscription by providing written notice to the other party at least ninety (90) days prior to the end of the then-current term. The expiration or termination of this Agreement shall not affect any Order Form or SOW in effect on the date of expiration or termination. Either party may terminate this Agreement, Order Forms and SOWs in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice.
8.2 Sections 2, 3, 4, 5, 6, 8, 9 and 10 shall survive the expiration or termination of this Agreement.
8.3 Audit. During the Term and for one (1) year following termination or expiration (but no more than once in a calendar year), Company and its auditors may inspect Customer’s records relating to its reproduction and use of the Software, Support and Subscriptions for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with Company and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount and Customer shall reimburse Company for the cost of the audit.

9. General.

9.1 The law of England and Wales governs this Agreement, and the parties agree to the exclusive jurisdiction of the courts in London, England.
9.2 Unless otherwise specified in this Agreement, all notices shall be in writing and shall be mailed (via registered or certified mail, return receipt requested), delivered by a nationally recognized express courier service with the ability to track shipments, or personally delivered to the other party at the address set forth above (or at such other address as either party may designate in writing to the other party). All notices shall be effective upon receipt.
9.3 This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, executed by both parties and expressly state that they are amending this Agreement. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Subscriptions, Support and Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
9.4 Failure to enforce any provision of this Agreement shall not constitute a waiver thereof. No waiver shall be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver shall not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions shall be interpreted to best accomplish the unenforceable provision’s essential purpose.
9.5 Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded. Both parties hereto agree to use their best efforts to minimize the effects of such failures or delays.

10. Definitions

“Community Edition” means the Software which Company makes available under the Apache2 License or under a commercial license with the Enterprise Subscription as described in Exhibit A.
“Development Subscription” means the Support for the Community or Enterprise Edition as described in Exhibits A and B only for non-production purposes including development, testing, pre-production or Q&A.
“Documentation” means the documentation made available by Company with the Software, which may be modified during the Term.
“Enterprise Edition” means the Software which Company makes available under a commercial license with the Enterprise Subscription as described in Exhibit A.
“Enterprise Subscription” means the license and Support for the Community Edition or Enterprise Edition as described in Exhibits A and B.
“Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation.
“Fees” mean the fees described in each Order Form or SOW.
“Order Form” means the ordering document for the Subscriptions, Support and Services.
“Production” means using the Software in a production and integration environment, generally using live data and/or applications for a purpose other than development, testing or Q&A.
“Production Server” is a Server that accepts, reads, or writes data but does not include Servers used for non-production purposes including development, testing, pre-production or Q&A.
“Residuals” means information that is retained in the unaided memories of Recipient’s employees, agents, or contractors as permitted herein who have had access to the Discloser’’s Confidential Information. Memory is unaided if the employee or contractor has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
“Server” is a single machine with no more than 256GB of RAM which processes data using one or more CPUs. If a machine includes server blades or virtual servers, each such server blade or virtual server is considered a separate Server.
“Services” mean training and consulting services purchased by Customer as set forth on an Order Form and as described in Exhibit C.
“Software” means the applicable OrientDB software licensed under this Agreement and all Updates which Company makes available.
“SOW” means the statement of work describing the Services purchased by Customer.
“Stable Release” means a Minor Version designated with an even number (e.g., v 1.2). Minor Versions with odd numbers are not Stable Releases (e.g., v 1.3).
“Standard Subscription” means the license and Support for the Community Edition as described in Exhibits A and B.
“Subscriptions” means the Enterprise, Standard or Development Subscription purchased by Customer as described in Exhibits A and B.
“Support” means the level of support purchased by Customer as set forth on the Order Form and as described in Exhibit B.
“Update” means a Major Version, Minor Version or Maintenance Version of the Software made available by Company as part of Enterprise or Standard Subscriptions. “Major Version” means a later version of the Software identified by a change in the digit to the left of the left-most decimal point (X.x.x); “Minor Version” means a later version of the Software identified by a change in the middle number in between the two decimal points (x.X.x); and “Maintenance Version” means a later version of the Software identified by a change in the digit to the right of the right-most decimal point (x.x.X).

EXHIBIT A

SUBSCRIPTIONS

1. Company offers the following Subscription levels with respect to the Software: Enterprise, Standard and Development Subscriptions.
2. Development Subscriptions are only for non-production purposes including development, testing, pre-production or Q&A. Customer shall not use a Development Subscription for support in Production. If Customer uses a Development Subscription in a Production environment, Customer agrees to promptly purchase the applicable Enterprise or Standard Subscription.
3. The provisions of this Section 3 apply only to the purchase of Enterprise Subscriptions: (i) During the term of the Subscription, Company grants to Customer a limited, non-exclusive, non-transferable license to use and reproduce the Enterprise Edition on Servers for which Customer has purchased a Subscription solely in connection with Customer’s internal business operations. Notwithstanding the foregoing, Customer may host the Software on behalf of its end users solely in conjunction with Customer’s applications; provided that Customer’s end users may not, at any time, access the Software directly. All of Customer’s Servers on which the Enterprise Edition is installed must be covered by the Enterprise Subscription. Upon termination or expiration of the Subscription, this Agreement and all licenses granted hereunder will terminate with respect to that Subscription. Following such termination or expiration of the Subscription, and upon thirty (30) days written notice by Company, Customer will provide written confirmation to Company that it has removed or uninstalled the Enterprise Edition from all of its Servers which were licensed under the Enterprise Subscription.
4. The provisions of this Section 4 apply only to the purchase of Standard Subscriptions: (i) During the term of the Subscription, Company grants to Customer a limited, non-exclusive, non-transferable license to use and reproduce the Community Edition on Servers for which Customer has purchased a Subscription solely in connection with Customer’s internal business operations. All of Customer’s Servers on which the Community Edition is installed must be covered by the Standard Subscription. Upon termination or expiration of the Subscription, this Agreement and all licenses granted hereunder will terminate with respect to that Subscription.
5. Customer shall not (and shall not allow any third party to): (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, nor shall Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Software for any purpose, including timesharing or service bureau purposes, (c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, (d) remove any product identification, proprietary, copyright or other notices contained in the Software, (e) modify or create a derivative work of any encrypted or encoded portion of the Software, or any other portion of the Software, (f) publicly disseminate performance information or analysis including, without limitation benchmarking test results; (g) use the Software other than on Servers; or (h) change any proprietary rights notices which appear in the Software or Documentation. The Software may include individual open source software components, each of which has its own copyright and its own applicable license conditions. The open source software is licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Software. All Servers running such Software must be at the same Subscription level (i.e., Enterprise or Standard). Customer shall not use the Enterprise Subscription for any Servers which are not licensed under the Enterprise Subscription. If at any time during the Term, Customer: (a) increases the quantity of its Servers on which the Software is installed or (b) upgrades a non-production Server to a Production Server, no later than thirty (30) days after each such addition or upgrade Customer shall notify Company, and pay the Fees applicable to such additional Servers beginning from the first date of such use.

EXHIBIT B

Company SUPPORT POLICY
A description of Support is set forth at: https://orientdb.com/support-policy-march-2016/.

EXHIBIT C

CONSULTING AND TRAINING SERVICES
1. Company shall perform the Services set forth on each Order Form or SOW signed by both parties.
2. Customer shall provide Company with reasonable assistance to facilitate the scheduling and performance of the Services.
3. Customer shall designate an engagement manager who shall be authorized to give or obtain all information, decisions and approvals of such party relating to the Services.
4. Services shall be deemed accepted when delivered unless otherwise set forth in the applicable Order Form or SOW.
5. Services not utilized within one (1) year of the applicable Order Form or SOW shall expire.
6. Services will be invoiced upon receipt of fully counter-signed Order Form.

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