465 lines
46 KiB
Plaintext
465 lines
46 KiB
Plaintext
MEMGRAPH
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ENTERPRISE LICENCE AGREEMENT
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Memgraph Limited is registered in England under registration 10195084 and has its registered office at Suite 4,
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Ironstone House, Ironstone Way, Brixworth, Northampton, NN6 9UD (“Memgraph”).
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Memgraph agrees to license and/or grant you (the “Customer”) access to the Software ( as defined below) and provide
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support and services to you only if you accept and agree to be bound by the terms and conditions in this Memgraph
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Enterprise Licence Agreement (the “Agreement”). By signing an Order Document (as defined below), which is subject to and
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part of this Agreement, installing and using the Software or by downloading a trial version of the Software, you agree
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to be bound by the terms of this Agreement.
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Memgraph Enterprise Trial Users: If you receive free of charge trial access to the Software, you are deemed a
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“Customer” for purposes of this Agreement, except that you are subject to the additional restrictions and limitations
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set forth in Section 3.2 below in respect of your use of such Software.
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1. DEFINITIONS.
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1.1. “Applicable Laws” means (i) all applicable laws, statutes and regulations, and (ii) regulatory policies,
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guidelines and industry codes (in each case having the force of law), which apply to the provisions of the
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Software and Services and this Agreement.
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1.2. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party
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(“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should
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be understood to be confidential given the nature of the information and the circumstances of disclosure.
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Customer’s Confidential Information includes Customer Data; Memgraph Confidential Information includes the
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Software and Services; and Confidential Information of each party includes the terms and conditions of this
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Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical
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information, product plans and designs, and business processes disclosed by such party. However, Confidential
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Information does not include any information that (i) is or becomes generally known to the public without
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breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its
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disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is
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received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was
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independently developed by the Receiving Party.
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1.3. “Customer Data” means business information or other data loaded by or for Customer and/or processed by the
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Software.
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1.4. “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time
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to time in the UK including the General Data Protection Regulation ((EU) 2016/679) as it forms part of UK law
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by virtue of section 3 of the European Union (Withdrawal) Act 2018; the Data
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Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive
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2009/136/EC); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), in each case as
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amended.
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1.5. “Derivate Work” means any modification or enhancement made by Customer to the Software, whether in source code,
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binary executable, intermediate or other form.
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1.6. “Effective Date” means the date on which you execute this Agreement.
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1.7. “Order Document” or “Order” means, as applicable: (i) in the case of a Trial Licence, the Memgraph trial
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registration form available on Memgraph’s website; or (ii) in any other case, an order form that is submitted
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by or on behalf of Customer and executed by or on behalf of the parties referencing
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this Agreement and that specifies the Software and/or Services ordered by Customer, as well as the specific
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terms and conditions, for that particular transaction.
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1.8. “Services” means those services, including Support Services, which may be provided to Customer by Memgraph
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pursuant to the terms of this Agreement and are expressly limited to those services directly related to
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Customer’s use of the Software, and expressly exclude any other services.
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1.9. “Software” means Memgraph’s proprietary downloadable graph database enterprise software known as Memgraph
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Enterprise Edition (MEE) (“Enterprise Software”) and the associated technical documentation located at
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https://docs.memgraph.com/ (“Documentation”), as well as software updates, upgrades, bug fixes, or modified
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versions thereof that Memgraph licenses or provides to Customer directly or indirectly throughout the Subscription
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Term. For the avoidance of doubt, for the purpose of this Agreement, the term Software excludes Memgraph’s
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free-to-use software known as Memgraph Community Edition (MCE) which is licensed pursuant to separate terms
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(including the Business Source Licence (BSL) or Apache 2.0) as indicated here: https://memgraph.com/legal.
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1.10. “Subscription Term” means the fixed term, of not less than one (1) year, designated in an Order Document
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beginning on the Effective Date and ending at the end of the period stated therein. If no expiration date is
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specified in an Order Document, the Subscription Term shall be a one (1) year period (“Minimum Subscription
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Term”). A “Subscription” is the binding, non-cancellable contract for the use of the Software for the
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Subscription Term as set forth in an Order Document.
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1.11. “Support” means the support and maintenance services, including any updates, upgrades, patches, enhancements
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and bug fixes for the Software that may be provided to Customer by Memgraph pursuant to the terms of this
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Agreement.
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1.12. “Users” means employees and Contractors of Customer that Customer has permitted or authorized to access and use
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of the Software on Customer’s behalf pursuant to the terms of this Agreement.
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2. ORDERS, DELIVERY; SUPPORT.
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2.1. Delivery. Customer shall access the Software from Memgraph’s website or online repository (as instructed by
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Memgraph) after the Effective Date. Memgraph shall deliver to Customer the licence key necessary to unlock the
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Software after Customer accepts an Order. Unless otherwise stated in an Order, Customer is solely responsible
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for installing Software on Customer’s own computer equipment. In some instances, Customer’s purchasing
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relationship exists solely between Customer and an authorised reseller of Memgraph’s Software and Services
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(a “Reseller”), in which case Sections 5.1-5.3 (Fees and Payment) will be inapplicable to such Order(s), and
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the Reseller shall be responsible for submitting Orders and the appropriate payment method therewith to
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Memgraph. An Order is not binding until Memgraph accepts and countersigns the Order.
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2.2. Support. Memgraph will use commercially reasonable efforts to provide Support to Customer in accordance with
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Memgraph’s then-current terms and conditions set forth at
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https://download.memgraph.com/legal/memgraph-support-terms-and-conditions.pdf at the support tier stated in the
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applicable Order. The Support terms and conditions are subject to change at Memgraph’s discretion; however,
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Memgraph will not materially reduce the level of Support during a Subscription Term for which Fees have been
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paid.
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3. LICENCE GRANTS; RESTRICTIONS AND PROPRIETARY RIGHTS.
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Customer’s licence and access rights and benefits, and Memgraph’s obligations to Customer, will vary depending on the
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product and the type of licence Memgraph is granting. If you purchased a licence to Memgraph Software, your licence will
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be subject to certain use and/or capacity restrictions, as identified on the applicable Order Document.
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3.1. Enterprise Software Licence. In consideration of the Fees paid hereunder and subject to the terms of this
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Agreement and the applicable Order, Memgraph grants Customer a world-wide, non-exclusive, non-transferable,
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non-sublicensable, and limited licence during the applicable Subscription Term, to download, access, install
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and use the Enterprise Software up to the maximum capacity (“Licensed Capacity”), and subject to the usage
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rules, specified in the applicable Order Document, and to use Documentation solely for Customer’s internal
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business purposes in connection with the operation of the Enterprise Software.
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3.2. Enterprise Trial Licence. If the Customer downloads, accesses, installs or uses the Software under a trial
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licence (“Trial Licence”), then Customer may use one (1) copy of the Software in accordance with the terms and
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conditions of this Agreement for a thirty (30) day period, or such longer trial period represented by the
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applicable licence key issued by or expressly authorised by Memgraph (the “Trial Period”). Trial Licences are
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permitted solely for Customer’s evaluation use to determine whether to purchase a Subscription to the Software.
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Customer may not use a Trial Licence for any other purpose. At the end of the Trial Period, the Trial Licence
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will expire and this Agreement will terminate as to such Trial Licence and continue to apply to any subsequent
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Subscription or use of the Software. If Customer decides not to obtain a Subscription upon expiration of the
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Trial Period, it will promptly cease using and will delete the Software from its computer systems. Memgraph has
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the right to terminate a Trial Licence at any time for any reason.
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3.3. Limited right to modify the Software. In consideration of the Fees paid hereunder and subject to the terms of
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this Agreement and the applicable Order, Memgraph grants Customer a licence to: (i) create, compile and test
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Derivative Works; (ii) use Derivative Works solely for Customer’s internal business purposes; and (iii)
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distribute Derivative Works back to Memgraph for potential incorporation into Memgraph’s maintained code base
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at its sole discretion.
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3.4. NO OBLIGATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR IN ANY ORDER DOCUMENT, MEMGRAPH
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WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR SERVICE LEVEL, OBLIGATIONS WITH RESPECT TO ANY ENTERPRISE TRIAL,
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OR OTHER NO-CHARGE SOFTWARE (INCLUDING TOOLS AND UTILITIES) LICENCES.
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3.5. General Restrictions. Customer acknowledges that the Software, and its structure, organization, and source code,
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constitute Memgraph’s and its suppliers’ valuable trade secrets, and that usage of the Software is subject to
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the following restrictions:
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3.5.1. Restrictions. Customer agrees not to, and not to authorize any third party to: (i) allow access or use
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of the Software by anyone other than its Users; (ii) distribute, embed, sell, rent, transfer, lease,
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lend, sublicense, loan, assign, pledge, grant a security interest in, or otherwise make the Software
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accessible or available to any third party; except to the limited extent expressly provided in Section
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3.5.2, use the Software in any service-bureau, timesharing, outsourcing or similar arrangement; (iii)
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subject only to the limited rights set out in Section 3.3, modify, adapt, transform, derive, disassemble,
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decompile, reverse engineer or otherwise attempt to derive the structure, sequence or organization of,
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the Software or any portion thereof; (iv) remove or alter product identification, copyright, trademark or
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other proprietary markings contained in or on the Software; (v) conduct any competitive analysis, publish
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or share with any third party any results of any technical evaluation or tests performed on the Software,
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or disclose Software features, errors or bugs to a third party without Memgraph’s prior written consent;
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or (vi) engage in any act designed to circumvent any restriction set forth in this Agreement, in the
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Software, or in an Order, including but not limited to restrictions related to Licensed Capacity.
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3.5.2. Internal Use Licences; Users. The Software is licensed for Customer’s internal business use and not for
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distribution or use by third parties. For clarity, however, Customer may make available to third parties
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any Customer-hosted services or other Customer applications or services that make use of or incorporate
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the Software, provided and solely to the extent that (i) Customer’s application or hosted service adds
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primary and significant functionality to the Software, (ii) Customer does not embed or otherwise
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distribute the Software to third parties (iii) Customer does not provide third parties direct access to
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operate or control the Software itself; and (iv) Customer at all times remains in compliance with the
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terms of the applicable licence grants under this Agreement. Subject to the terms and conditions of this
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Agreement, in addition to Customer’s employees, Customer may permit its independent contractors and
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consultants (“Contractors”) to serve as Users. Customer will remain responsible for compliance by each of
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its Users (including but not limited to any Contractor Users) with all of the terms and conditions of
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this Agreement, and any use of the Software by any Contractors must be for the sole benefit of Customer.
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3.6. Ownership; Reservation of Rights. This is an agreement for use of Memgraph Software and not an agreement for
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sale. Customer acknowledges that it is obtaining only a limited right to use the Software on a licensed basis,
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and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights
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are being conveyed to Customer. Customer agrees that Memgraph or its suppliers retain all right, title and
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interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the
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Memgraph Software. Nothing in this Section shall be deemed as granting Memgraph ownership of Customer Data or
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in any way impacting Customer’s ownership of Customer Data.
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3.7. Third Party Code. The Software may contain or be provided with components which are licensed from third
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parties, including components subject to the terms and conditions of “open source” software licences
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(“Open Source Software”). Open Source Software may be identified in the Software, Documentation, or in a list
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of the Open Source Software provided to you upon your written request. To the extent required by the licence
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that accompanies the Open Source Software, the terms of such licence will apply in lieu of the terms of this
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Agreement with respect to such Open Source Software, including, without limitation, any provisions governing
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access to source code, modification, or reverse engineering.
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3.8. IP Ownership. The Parties agree that, save as otherwise provided in this Agreement, neither party shall gain, by
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virtue of this Agreement, any rights of ownership or any other interest, right or title of copyrights, patents,
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trade secrets, trademarks, or any other intellectual property rights owned by the other Party. Any and all new
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works developed in the course of performing obligations pursuant to this Agreement and all new inventions,
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innovations or ideas developed by a Party in the course of performance of its activities under this Agreement,
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will belong to that Party who develops the same. Notwithstanding anything to the contrary in this Section, the
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Parties understand and agree that any and all proprietary materials developed by a Party prior to this
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Agreement and any modifications, enhancements, improvements or inventions made to such proprietary materials
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shall be owned by that Party, regardless of which Party prepared or developed such modifications, enhancements,
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improvements or inventions.
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3.9. License-back of Derivate Works. If Customer elects, at its sole discretion, to distribute Derivative Works
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back to Memgraph for potential incorporation into Memgraph’s maintained code base, Customer grants Memgraph
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(without any restrictions, limitations or requirement of remuneration) a worldwide, non-exclusive, fully
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paid-up, royalty-free, perpetual, irrevocable, transferable and sublicensable licence to use, exploit, modify,
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make derivative works of, commercialise, distribute and otherwise exploit such Derivative Works.
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4. CUSTOMER DATA; OBLIGATIONS OF CUSTOMER AND MEMGRAPH.
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4.1. Customer shall retain all of its rights, title, and interest in and to its intellectual property rights in
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Customer Data. Customer grants to Memgraph a non-exclusive, worldwide, limited-term licence solely to host,
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copy, transmit and display Customer Data as reasonably necessary for Memgraph to support Customer’s use of the
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Software, to ensure the security of and to administrate the Software, and to deliver Services in accordance
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with this Agreement or as otherwise outlined in https://memgraph.com/legal/privacy-policy/.
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4.2. Protection of Customer Data. Memgraph will maintain appropriate administrative, physical, and technical
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safeguards, consistent with generally prevailing industry standards, for protection of the security,
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confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will
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include, but will not be limited to, measures for preventing access, use, modification, or disclosure of
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Customer Data by Memgraph personnel, except as permitted by this Agreement.
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4.3. Personal data. Both parties will comply with all applicable requirements of the Data Protection Legislation.
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This section 4.3 is in addition to, and does not relieve, remove or replace, a party’s obligations under the
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Data Protection Legislation. Notwithstanding the foregoing, the parties acknowledge that, in the ordinary
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course of providing the Services, Memgraph shall not process personal data (as defined in the Data Protection
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Legislation) on behalf of the Customer. In the event that the Customer requires Memgraph to process personal
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data on its behalf, it shall notify Memgraph and the parties shall execute such additional terms as necessary
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to comply with applicable Data Protection Legislation.
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5. FEES AND PAYMENT.
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5.1. Fees. Customer will pay Memgraph the fees for the Licences and Services as set forth in the applicable Order (
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“Fees”). Customer acknowledges and agrees that if Customer’s use of the Software exceeds the Licensed Capacity
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set forth on the applicable Orders or otherwise requires the payment of additional fees (per the terms of this
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Agreement), Customer shall be invoiced for such usage and Customer agrees to pay the additional fees in
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accordance with this Section. Notwithstanding the terms of Section 5.4 below (Reconciliation), Customer
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acknowledges and agrees that it is obligated to ensure that its Software usage does not exceed the Licensed Capacity
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and to promptly notify Memgraph of any such excess usage no more than thirty (30) days from the last day of the
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calendar month during which such excess usage occurred.
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5.2. Payment Terms. Except as otherwise specifically set forth on an Order Document, all fees are due and payable
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within thirty days after the date of invoice. Renewal Fees for any renewal Subscription Term (if purchased by
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Customer) will be due and payable within thirty (30) days of expiration of the then-current term. If Fees are
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not paid when due, or in the event of other breach of this Agreement, Customer shall discontinue use of the
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Software and Memgraph may suspend its performance, including its delivery of technical support of the Software
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or other Services without further notice and without penalty. All Orders (including multi-year Subscriptions
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with annual payment schedules) are non-cancellable and all amounts paid are non-refundable, unless otherwise
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expressly set forth herein. Any invoiced amount not received by the due date will accrue late interest at the
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rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever
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is lower.
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5.3. Taxes. Fees are exclusive of taxes. Customer will pay any sales, use, value added, duties, fees and other
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governmental assessments or charges arising out of this Agreement and the transactions contemplated herein.
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Customer will make all payments free and clear of, and without reduction for, any withholding taxes.
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5.4. Reconciliation. At Memgraph’s request from time to time, not exceeding once per quarter, Customer will provide
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Memgraph with a report detailing its use of the Software, including its non-production and/or production use
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and using the self-monitoring capabilities of the Software or other means, and Memgraph may inspect Customer’s
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records related to such report not more frequently than annually to ensure payment of Fees. Any on-site review
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will be conducted during regular business hours at Customer’s offices. The parties will use reasonable efforts
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to promptly resolve any discrepancies between licensed usage and actual usage.
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6. APPLICABLE LAWS.
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6.1. Each Party shall perform this Agreement in accordance with all Applicable Laws. Without prejudice to the
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foregoing, each Party shall:
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6.1.1. comply with all Applicable Laws relating to anti-bribery, anti-corruption, anti-slavery and human
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trafficking, including the Bribery Act 2010 and the Modern Slavery Act 2015
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(the “Relevant Requirements”);
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6.1.2. have and maintain in place throughout the Term its own policies and procedures, including adequate
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procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will
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enforce them where appropriate;
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6.1.3. (if not prohibited by law or regulation from doing so) promptly report to the other Party any request or
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demand for any undue financial or other advantage of any kind received by the reporting Party in
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connection with the performance of this Agreement; and
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6.1.4. (if not prohibited by law or regulation from doing so) notify the other Party (and email shall be
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sufficient for this purpose) as soon as it becomes aware of any actual or suspected slavery or human
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trafficking in a supply chain which has a connection with this Agreement.
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7. REPRESENTATIONS AND WARRANTIES.
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7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other that: (i) it is a
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corporation lawfully incorporated and validly existing pursuant to the laws of its place of incorporation;
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(ii) it has all requisite power and authority, corporate or otherwise, to execute, deliver and perform its
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obligations under this Agreement; and (iii) this Agreement constitutes its legal, valid and binding obligations
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and may be enforced against it.
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7.2. Limited Memgraph Warranty. Memgraph warrants that the Software, when used as permitted hereunder and in
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accordance with the applicable Documentation, will operate in all material respects as described in the
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applicable Documentation, and that the Services will be provided in a professional manner consistent with
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industry standards.
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7.3. Limitations; Remedy. Memgraph does not warrant that the Software or the Services will be error-free,
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uninterrupted or meet Customer’s specific requirements or that performance of the Services will be
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uninterrupted. Memgraph will have no warranty obligation under Section 7.2 for Customer’s misuse or failure to
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use the Software in accordance with its Documentation or this Agreement. Customer’s sole and exclusive remedy,
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and Memgraph’s sole and exclusive obligation, for breach of warranty will be (i) during the thirty (30) day
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period following initial Delivery of the Software under an Order, Memgraph’s correction of the program errors
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that cause the breach of warranty, or if Memgraph cannot substantially correct such breach in a commercially
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reasonable manner, a refund of the fees paid for the nonconforming Software (ii) during the remainder of the
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relevant Subscription Term, Memgraph’s delivery of Support with respect to any such program errors. In the
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event of a refund remedy, Customer’s licences and right to use the Software or receive Services will end. In
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the event of any noticed breach of warranty with respect to Services, Memgraph’s sole and exclusive obligation
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shall be the re-performance of the deficient Services.
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7.4. Disclaimer. THIS SECTION 7 IS A LIMITED WARRANTY AND, EXCEPT EXPRESSLY AS SET FORTH IN SECTION 7.2,
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THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE THIRD-PARTY CODE, AND ALL SERVICES ARE PROVIDED “AS IS”.
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MEMGRAPH MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIMS
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ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
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8. INDEMNIFICATION.
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8.1. By Memgraph. Memgraph will defend against any action against Customer brought by a third party to the extent the
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action is based on a claim that the Software infringes a third party’s patent, copyright or trademark
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(a “Claim”) and indemnify Customer from the damages, liabilities, costs and expenses (including reasonable
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attorneys’ fees) awarded against Customer or agreed in settlement by Customer resulting from such Claim. If
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your use of the Software is (or in Memgraph’s opinion likely to be) enjoined, then Memgraph may, at its own
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expense and at its option: (i) substitute substantially similar functionality for the Software which renders
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it non-infringing; (ii) procure for Customer the right to continue to use the Software; or if (i) and (ii) are
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not commercially reasonable, terminate this Agreement and refund Customer any prepaid, unused (pro-rated) Fees
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for the duration of the then-current Subscription Term. The foregoing obligations of Memgraph will not apply:
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(i) if the Software is modified by any party other than Memgraph, but solely to the extent the alleged
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infringement is caused by such modification; (ii) if the Software is used in combination with other products or
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processes not provided or authorized by Memgraph, but solely to the extent the alleged infringement is caused
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by such combination; (iii) use of any version or release of Software other than the most current version or
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release made available to Customer by Memgraph, if its use would have avoided the infringement; (iv) any
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unauthorized use of the Software. THIS SECTION 8.1 SETS FORTH MEMGRAPH’S SOLE LIABILITY AND CUSTOMER’S SOLE
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AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
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8.2. By Customer. Customer will indemnify and hold Memgraph and its suppliers harmless against any claims,
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liabilities, costs, and expenses (including reasonable attorneys’ fees) that Memgraph or its suppliers may
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incur as a result of a third-party claim arising from or related to Customer Data, or misuse or unauthorised
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use of the Software by Customer or any User.
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8.3. Conditions. All defence and indemnity obligations under Sections 8.1 and 8.2 are conditioned on the indemnitee
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(i) giving the indemnitor written notice of the relevant claim within thirty (30) days after the indemnitee
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receives notice of the Claim (or sooner if required by applicable law); (ii) reasonably cooperating with the
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indemnitor, at the indemnitor’s expense, in the defence of the claim; and (iii) giving the indemnitor sole
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control of the defence and any settlement negotiations. The indemnitee may participate in the defence at its
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expense.
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9. LIMITATION OF LIABILITY.
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9.1. TO THE EXTENT PERMITTED BY LAW, NEITHER MEMGRAPH NOR CUSTOMER SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY
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FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, SUBSTITUTE GOODS OR SERVICES, OR FOR
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INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR
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GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT,
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IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN
|
||
ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE.
|
||
9.2. LIMITATIONS ON DIRECT DAMAGES. EXCEPT FOR ANY EXCLUDED CLAIMS AND ANY DAMAGES THAT CANNOT BE LIMITED UNDER
|
||
APPLICABLE LAW, IN NO EVENT WILL MEMGRAPH’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS
|
||
AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO MEMGRAPH UNDER
|
||
THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (i)
|
||
PAYMENTS TO A THIRD PARTY ARISING FROM A PARTY’S OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION); (ii) BREACH BY
|
||
A PARTY OF SECTION 10 (CONFIDENTIAL INFORMATION), AND (iii) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S
|
||
INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY EXCLUSIONS (i)-(iii) ARE REFERRED TO AS THE “EXCLUDED CLAIMS”). WITH
|
||
RESPECT TO ANY EXCLUDED CLAIMS, MEMGRAPH’S TOTAL AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED £1,000,000.
|
||
9.3. Nothing in this Agreement excludes the liability of Memgraph for death or personal injury caused by the
|
||
Supplier’s negligence; or for fraud or fraudulent misrepresentation.
|
||
|
||
10. CONFIDENTIALITY.
|
||
10.1. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own
|
||
confidential information of like kind (but not less than reasonable care) to (i) not use any confidential
|
||
information of the Disclosing Party for any purpose outside the scope of this agreement and (ii) except as
|
||
otherwise authorized by the Disclosing Party in writing, limit access to confidential information of the
|
||
Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for
|
||
purposes consistent with this agreement and who have signed confidentiality agreements with the receiving party
|
||
containing protections not materially less protective of the confidential information than those herein.
|
||
Neither party will disclose the terms of this agreement or any Orders to any third-party other than its
|
||
affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a
|
||
party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for
|
||
such affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section.
|
||
10.2. Compelled Disclosure. The Receiving Party may disclose confidential information of the Disclosing Party to the
|
||
extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the
|
||
compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s
|
||
cost, if the Disclosing Party wishes to contest the disclosure. If the receiving party is compelled by law to
|
||
disclose the Disclosing Party’s confidential information as part of a civil proceeding to which the Disclosing
|
||
Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will
|
||
reimburse the Receiving Party for its reasonable cost of complying and providing secure access to that
|
||
confidential information.
|
||
|
||
|
||
11. TERMINATION.
|
||
11.1. Term. The term (“Term”) of this Agreement will commence on the Effective Date and continue until all
|
||
Subscriptions, licence terms and Orders expire, unless earlier terminated in accordance with this Section 11.
|
||
11.2. Termination for Cause. In the event of a material breach of this Agreement (excluding any breaches for which an
|
||
exclusive remedy is expressly provided), the non-breaching party may terminate this Agreement if such breach
|
||
is not cured within thirty (30) days after written notice thereof (except that for a breach of Section 3.5
|
||
(“General Restrictions”), there will be no cure period). For clarity, material breach of this Agreement
|
||
includes, but is not limited to, failure to timely pay amounts due hereunder, exceeding the scope of any
|
||
Licence granted hereunder (including the Licensed Capacity), violating the Licence restrictions, breach of
|
||
Section 6.1 and failing to protect the other party’s Confidential Information.
|
||
11.3. Without affecting any other right or remedy available to it, and to the fullest extent permitted by applicable
|
||
law, either party may terminate this Agreement with immediate effect by giving written notice to the other
|
||
party if the other party:
|
||
11.3.1. suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or
|
||
admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123
|
||
of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not
|
||
appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or
|
||
11.3.2. the other party commences negotiations with all or any class of its creditors with a view to rescheduling
|
||
any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors
|
||
other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or
|
||
more other companies or the solvent reconstruction of that other party; or
|
||
11.3.3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection
|
||
with the winding up of that other party other than for the sole purpose of a scheme for a solvent
|
||
amalgamation of that other party with one or more other companies or the solvent reconstruction of that
|
||
other party; or
|
||
11.3.4. an application is made to court, or an order is made, for the appointment of an administrator, or if a
|
||
notice of intention to appoint an administrator is given or if an administrator is appointed, over the
|
||
other party; or
|
||
11.3.5. the holder of a qualifying floating charge over the assets of that other party has become entitled to
|
||
appoint or has appointed an administrative receiver; or
|
||
11.3.6. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is
|
||
appointed over the assets of the other party; or
|
||
11.3.7. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution,
|
||
sequestration or other such process is levied or enforced on or sued against, the whole or any part of
|
||
the other party’s assets and such attachment or process is not discharged within 30 days; or
|
||
11.3.8. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which
|
||
it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3.1 to
|
||
clause 11.3.7 (inclusive); or
|
||
11.3.9. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial
|
||
part of its business.
|
||
11.4. Effect of Termination. Upon the termination of this Agreement: (i) all licences will terminate; (ii) Customer
|
||
will immediately discontinue all use of the affected Software and erase all other tangible embodiments of
|
||
Memgraph Confidential Information in Customer’s possession or control, and promptly certify the same to
|
||
Memgraph; (iii) Memgraph may immediately cease providing the Services; (iv) (subject to this Section),
|
||
Memgraph will return or delete all tangible embodiments of Customer Confidential Information in Memgraph’s
|
||
possession or control; and (v) Sections 1 (“Definitions”), 3.5 (“General Restrictions”), 3.6 (“Ownership;
|
||
Reservation of Rights”), 5 (“Fees and Payment”), 7.3 (“Limitations”), 7.4 (“Disclaimer”), 8
|
||
(“Indemnification”), 9 (“Limitation of Liability”), 10 (“Confidentiality”), 11.4 (“Effect of Termination”),
|
||
and 12 (“Miscellaneous”) will survive. If a party’s file retention policies or a valid legal order provides
|
||
for backup or archival copies of files to be retained, such party will notify the other party of such policy
|
||
or order, protect the other party’s Confidential Information as required hereunder, and permanently erase,
|
||
delete, or destroy such Confidential Information as soon as permissible under such policy or order.
|
||
|
||
12. MISCELLANEOUS.
|
||
12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
|
||
Memgraph may assign this Agreement to any affiliate or in connection with a merger, reorganization,
|
||
acquisition, or other transfer of all or substantially all of Memgraph’s assets or voting securities. Customer
|
||
may not assign or transfer this Agreement, in whole or in part, without Memgraph’s written consent except that
|
||
Customer may assign its rights and obligations under this Agreement, in whole but not in part, without
|
||
Memgraph’s written consent in connection with any merger, consolidation, sale of all or substantially all of
|
||
Customer’s assets or voting stock, or any other similar transaction provided that: (i) the assignee is not a
|
||
direct competitor of Memgraph; (ii) Customer provides prompt written notice of such assignment to Memgraph;
|
||
(iii) the assignee is capable of fully performing Customer’s obligations under this Agreement; and (iv) the
|
||
assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign
|
||
this Agreement without such written consent will be null and void.Force Majeure. Memgraph shall have no
|
||
liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations
|
||
under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its
|
||
reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce
|
||
of Memgraph or any other party), failure of a utility service or transport or telecommunications network, act
|
||
of God, war, pandemic, riot, civil commotion, malicious damage, compliance with any law or governmental order,
|
||
rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of
|
||
suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.
|
||
12.2. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject
|
||
matter or formation (including non-contractual disputes or claims) shall be governed by and construed in
|
||
accordance with the law of England and Wales.
|
||
12.3. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive
|
||
jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject
|
||
matter or formation (including non-contractual disputes or claims).
|
||
12.4. Severability; Waiver; Construction. If a court of competent jurisdiction adjudges any provision of this
|
||
Agreement to be invalid or unenforceable, the remaining provisions of this Agreement, if capable of substantial
|
||
performance, will continue in full force and effect without being impaired or invalidated in any way. The
|
||
parties agree to replace any invalid provision with a valid provision that most closely approximates the intent
|
||
and economic effect of the invalid provision. All waivers must be in writing. A party’s consent to, or waiver
|
||
of, enforcement of this Agreement on one occasion will not be deemed a waiver of any other provision or such
|
||
provision on any other occasion. In this Agreement, the word “including” means “including but not limited to.”
|
||
No presumption will operate in favour of or against any party as a result of its role in drafting this
|
||
Agreement.
|
||
12.5. Subcontractors. Memgraph may use the services of subcontractors in connection with its performance of this
|
||
Agreement, provided that Memgraph remains solely responsible for (i) compliance of any such subcontractor with
|
||
the terms of this Agreement and (ii) the overall performance of Memgraph as required under this Agreement.
|
||
12.6. Use of Aggregate Data. Customer agrees that Memgraph may collect, use and disclose quantitative data and
|
||
metadata derived from the use of the Software (i) for its own internal, statistical analysis, (ii) to develop
|
||
and improve the Software and (iii) to create and distribute reports and other materials regarding use of the
|
||
Software. For clarity, any such data collected, used, and disclosed will be in anonymized aggregate form only
|
||
and shall not identify Customer or its Users, or disclose any Customer Data.Independent Contractors. The
|
||
parties are independent contractors. No agency, partnership, franchise, joint venture, or employment
|
||
relationship is intended or created by this Agreement. Neither party has the power or authority to create or
|
||
assume any obligation, or make any representations or warranties, on behalf of the other party.
|
||
12.7. Publicity. Memgraph may, in conformity with Customer’s trademark usage guidelines, use Customer’s name and logo
|
||
in Memgraph’s sales and marketing materials, including in business presentations, Customer lists, and on
|
||
websites. Neither party will issue a press release regarding this Agreement without the other party’s prior
|
||
written consent. Neither party will disclose the terms of this Agreement to any third party, except as required
|
||
by law.
|
||
12.8. Notice. Any notice, consent, or waiver hereunder must be in writing, addressed to the attention of “Legal
|
||
Department” at the address set forth above, and delivered by personal delivery, reputable rapid courier, or
|
||
certified/registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1)
|
||
day after deposit with an overnight domestic courier, two (2) days after deposit with an international courier,
|
||
or five (5) days after deposit in the certified or registered mail. A party may specify a new address by
|
||
providing notice to the other party in accordance with this Section.
|
||
12.9. Compliance with Law. Each party will comply with all applicable laws, regulations, and orders of any
|
||
governmental authority of competent jurisdiction in its performance under this Agreement, including but not
|
||
limited to those applicable to data collection and the privacy and security of personal information, including
|
||
trans-border data transfers and data breach notification requirements as required of each party by law.
|
||
12.10.Supremacy; Modification. This Agreement will prevail over any written instrument submitted by Customer; the
|
||
terms of any purchase order, acknowledgement, or similar document submitted by Customer to Memgraph will have
|
||
no effect. If the express terms of an Order Document conflict with this Agreement, the terms on the Order
|
||
Document will prevail, but only with respect to that Order Document. This Agreement cannot be varied or
|
||
supplemented by course of dealing or by usage of trade. All modifications or amendments to this Agreement must
|
||
be in writing and signed by both parties, except that subsequent renewals and purchases of additional Licensed
|
||
Capacity can be procured by payment against an issued invoice as set forth in Section 5 (“Fees and Payment”)
|
||
above.
|
||
12.11.No Third Party Beneficiaries. This Agreement is not intended and shall not be construed to give any third party
|
||
any interest or rights with respect to or in connection with any agreement or provision herein, except as
|
||
expressly provided for in this Agreement.
|
||
12.12.Entire Agreement. This Agreement in its original English text, sets forth the complete, exclusive, and final
|
||
agreement of the parties concerning the subject matter hereof, supersedes, replaces, and merges all prior and
|
||
contemporaneous agreements, communications, and understandings, both
|
||
written and oral, between them concerning the subject matter hereof. This Agreement may be executed in
|
||
counterparts.
|