Dgraph Cloud Terms of Service

These Dgraph Cloud Terms of Service (this “Agreement”) are a binding legal agreement between you (“Customer” or “you”) and Dgraph Labs, Inc. (“Dgraph”) regarding your use of Dgraph Cloud, Dgraph’s proprietary managed Dgraph Cloud service (the “Dgraph Service”). Please read this Agreement carefully.

BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE DGRAPH SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THIS AGREEMENT, INCLUDING DGRAPH’S PRIVACY POLICY. If you are not eligible, or do not agree to this Agreement, then you do not have our permission to use the Dgraph Cloud Service. YOUR USE OF THE SERVICE, AND DGRAPH’S PROVISION OF THE DGRAPH SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY DGRAPH AND BY CUSTOMER TO BE BOUND BY THE TERMS IN THIS AGREEMENT.

1. Definitions.

1.1. “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.

1.2. “API Materials” means any technical data, specifications, documentation and other materials that Dgraph provides to Client in connection with the API

1.3. “Customer Application” means each of Customer’s software application that connects to the Dgraph Service using the Dgraph APIs.

1.4. “Customer Data” means any data provided by a Customer Application to Dgraph via the Dgraph API to facilitate the Dgraph Service. Customer Data does not include any component of the Dgraph Service, Dgraph Technology, or any data provided by or on behalf of Dgraph.

1.5. “Dgraph API” means a Dgraph proprietary application programming interface (including any modifications, enhancements and derivatives thereof) made available by Dgraph to Customer.

1.6. “Dgraph Technology” means, collectively, the API Materials, Beta Offerings, Documentation, Dgraph APIs, Dgraph Service, and Software.

1.7. “End User” means a user of the Customer Application who are bound to enforceable terms of use with Customer, as further described in this Agreement.

1.8. “Service Level Requirements” means those requirements set forth in the Dgraph Service Level Agreement located at https://dgraph.io/legal-notices/cloud-sla.  

2. Services

2.1. Dgraph API. Subject to the terms and conditions of this Agreement, during the Subscription Term, Dgraph hereby grants Customer a limited, non-exclusive, non-sublicensable and non-transferable right to access the Dgraph API in accordance with the API Materials and use the API Materials, in each case, for the sole purpose of (i) developing, testing, and operating Customer Applications; and (ii) publishing, distributing, and making the Customer Applications available to End Users.

2.2. Dgraph Service. Subject to the terms and conditions of this Agreement, during the Subscription Term, Dgraph will use its commercially reasonable efforts to provide to Customer the Dgraph Service in accordance with the Service Level Requirements. To the maximum extent permitted by law, Customer’s sole and exclusive remedy for Dgraph’s failure to meet the Service Level Requirements will be the service credits set forth in the Service Level Agreement.

2.3. Software. If the API Materials include any downloadable software from Dgraph (“Software”), then, subject to the terms and conditions of this Agreement, Dgraph grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Dgraph’s rights in the Software to install and operate the Software in accordance with all applicable Documentation (as defined below).

2.4. Documentation. To the extent that the Dgraph Technology is accompanied by any Dgraph-provided user manuals, help files, specification sheets, or other documentation, in whatever form (“Documentation”), Dgraph hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Dgraph’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights to the Dgraph Technology under this Agreement.

2.5. Beta Products. From time to time, Dgraph may make certain features or functionality available on a beta, pilot, limited release, preview, or evaluation basis (the “Beta Offering(s)”). Customer may use the Beta Offerings only for the purpose of evaluating the functions and performance of the Dgraph Service, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified by Dgraph. Customer acknowledges that the Beta Offering may be discontinued at any time and that any data stored in the Beta Offering may become unavailable at that time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BETA OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND DGRAPH WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE DGRAPH’S LIABILITY WITH RESPECT TO THE BETA OFFERINGS WILL NOT EXCEED THE GREATER OF AMOUNTS PAID BY CUSTOMER FOR THE BETA OFFERING OR $100.00. WITHOUT LIMITING THE FOREGOING, DGRAPH DOES NOT REPRESENT OR WARRANT THAT: (A) CUSTOMER’S USE OF THE BETA OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE BETA OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR (C) THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER WILL BE FULLY LIABLE UNDER THIS AGREEMENT TO DGRAPH FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE BETA OFFERINGS, ANY BREACH BY CUSTOMER OR ITS AUTHORIZED USERS OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

2.6. Restrictions. To the maximum extent permitted by applicable law, Customer will not, directly or indirectly, and will not authorize any person, to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) reproduce, translate, adapt, or modify; (iii) write or develop any program based upon; (iv) sell, sublicense, transfer any rights in, use for the benefit of or to provide services (e.g., as a service bureau), or allow access to unauthorized persons to; (v) transmit unlawful, infringing or harmful data or code to or from; (vi) replicate significant portions of; or (vii) otherwise use any Dgraph Technology, in each case, except as expressly permitted under this Agreement. Customer will prevent any unauthorized use of the Dgraph Technology and will immediately notify Dgraph in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to the Dgraph Technology through Customer. Dgraph reserves the right to investigate potential violations of this Agreement. In the event Dgraph reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 6.2), Dgraph will have the right to suspend Authorized Users suspected of the violation from accessing the Dgraph Service for so long as is reasonably necessary to address the potential violation. Customer must not incorporate, link, distribute or use any third party software or code in conjunction with (1) the Software (2) any software, products, documentation, content or other materials developed using the Software, or (3) any derivative works that Customer make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software, including the distribution or disclosure of any source code; or (b) grants, purports to grant or has the potential to grant to any third party any rights to or immunities under any intellectual property rights of Dgraph, including as such rights exist in or relate to the Software.

2.7. Compliance with Laws. Any and all of Customer’s use of the Dgraph Technology, including the operation of any Customer Applications, must be in compliance with all applicable laws and regulations.

2.8. Customer Support. Subject to Customer’s compliance with this Agreement, Dgraph will provide Customer with support services in accordance with the Dgraph Cloud Support Terms located at https://dgraph.io/legal-notices/cloud-support

3. Dgraph API

3.1. Modifications. Dgraph reserves the right to modify the Dgraph API and the API Materials, and to release subsequent versions of the Dgraph API, in accordance with the remainder of this Section 3. Customer agrees that it may be required to obtain and use the most recent version of the Dgraph API in order for Customer Applications to continue to function with the Dgraph API and the Dgraph Service.

3.2. Emergencies. In the event of an emergency, critical failure, suspected critical failure, loss of license, or a security breach, without limiting any other right of Dgraph under this Agreement, Dgraph reserves the right to modify, suspend, or discontinue the Dgraph API and the Dgraph Service at any time without notice or liability to Customer.

3.3. Planned updates. In all other cases not covered by Section 3.2 above, should Dgraph elect to modify or suspend the Dgraph API due to a planned change, it will use commercially reasonable efforts to give Customer no less than 5 business days’ written notice of the modification or suspension.

3.4. Access to Customer Applications. Customer agrees to provide Dgraph with access to any Customer Applications and other materials related to Customer’s use of the Dgraph API as reasonably requested by Dgraph in order for Dgraph to verify Customer’s compliance with this Agreement. Customer agrees that Dgraph may survey Customer Applications and Customer will not block or interfere with these efforts.

4. Customer Applications

4.1. Permissions. Customer represents and warrants to Dgraph that it has obtained and will maintain all necessary rights, permissions, and licenses, if any, in content, material, data, and software code appearing, used, stored, or displayed in or using any of the Customer Applications and that the Customer Applications will be in full compliance with all terms of applicable platform requirements (e.g., terms imposed by Apple and Google on developers and parties utilizing their respective technology platforms, marketplaces, etc.). If Customer uses third party IDs or other third-party services or offerings (each, a “Third Party Service”) to interact with the API Materials or Dgraph Service, Customer must at all times be in compliance with all agreements, policies and other terms applicable to use of those Third Party Services.

4.2. Mandatory End-User License Agreement Clauses. Customer will include, in a mandatory end-user license agreement for each Customer Application (“EULA”), in an agreement between Customer and each End User, legally enforceable provisions that are appropriate to the Customer Application, that obtain all necessary licenses, rights, consents, and permissions from the End User and that comply with all applicable laws, rules and regulations, and that include: (a) all terms, disclosures and information necessary to comply with the terms of this Agreement; and (b) each End User’s consent to the collection, processing, storage, disclosure, and use by Dgraph and service providers of Customer Data and Usage Data, and the transfer of Customer Data and Usage Data to and between Dgraph and service providers (which may be in the United States or in other countries), in each case for the purposes of (i) providing the Dgraph Service to Customer and End Users, (ii) facilitating the provision of new products, updates, enhancements, and other services, (iii) improving the Dgraph API and Dgraph Service, (iv) providing new products, services, or technologies to Customer, End Users, and customers of Dgraph, and (iv) as otherwise set forth under this Agreement..

4.3. Enforcement. Customer will use its best efforts to enforce any violations of the EULA by an End User and immediately terminate an End User’s access to the Customer Application if the End User breaches the terms of the EULA.

5. Payment

5.1. Fees. Certain features of the Dgraph Service may require Customer to pay fees. Before Customer pays any fees, Customer will have an opportunity to review and accept the fees that Customer will be charged. All fees are non-refundable. For those features that require payment of fees, Customer agrees to pay Dgraph the fees specified on the pricing page made available at www.dgraph.io/pricing (“Pricing Page”). All fees payable to Dgraph must be paid in accordance with the terms and conditions contained on the Pricing Page. Dgraph will make reasonable efforts to keep pricing information published on the Pricing Page up to date. Dgraph encourages Customer to check the Pricing Page periodically for current pricing information. Dgraph may change the fees for any feature of the Dgraph Service, including additional fees or charges, if Dgraph gives Customer advance notice of changes before they apply, and in certain circumstances and subject to applicable law, a right for the Customer to withdraw from the Agreement. Dgraph, in its sole discretion, may make promotional offers with different features and different pricing to any of Dgraph’s customers. These promotional offers, unless made to Customer, will not apply to Customer’s offer or this Agreement.

5.2. Payment. Except as otherwise provided on the Pricing Page, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Dgraph to collect any amount that is not paid when due. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars. Customer agree that Dgraph may suspend Customer’s access to the Dgraph Service if Customer fail to timely pay fees due to Dgraph.

5.3. Authorization. Customer authorizes Dgraph to charge all sums for the orders that Customer makes and any paid feature of the Dgraph Service that Customer selects as described in this Agreement or published by Dgraph, to the payment method specified in Customer’s account. If Customer pays any fees with a credit card, Dgraph may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.

5.4. Subscriptions. Paid features of the Dgraph Service may be structured to include automatically recurring payments for periodic charges (“Subscription Service”). If Customer activates a Subscription Service, Customer authorizes Dgraph to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when Customer purchases Customer’s first subscription in connection with the Dgraph Service. The “Subscription Fee” is set forth on the Pricing Page for the applicable Subscription Service. Customer’s account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until Customer cancels Customer’s subscription or Dgraph terminates it. Customer must cancel Customer’s subscription before it renews in order to avoid billing of the next periodic Subscription Fee to Customer’s account. Dgraph will bill the periodic Subscription Fee to the payment method Customer provides to Dgraph during registration or in the Customer account (or to a different payment method if Customer changes Customer’s payment information). Customer may cancel the Subscription Service by  contacting us at: [email protected].

5.5. Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Dgraph’s net income).  

6. Term and termination

6.1. Term. This Agreement will start on the date on which Customer consents to this Agreement (“Effective Date”) and, unless terminated earlier in accordance with this Agreement, will continue for an initial term of one month (“Initial Term”), and will automatically renew for subsequent one-month renewal term(s) (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless either party provides written notice of non-renewal at least 30 days before the expiration of the then-applicable term.

6.2. Termination. Dgraph may terminate this Agreement by written notice if any of the following occurs: (i) Customer fails to pay past due amounts within 10 days of written notice of nonpayment; (ii) Customer is in material breach of this Agreement, which is not cured within 30 days of written notice of such breach; or (iii) Customer files for or is adjudicated bankrupt or suffers any other analogous event. Notwithstanding the foregoing in this Section 6.2, Dgraph may immediately terminate this Agreement upon notice to Customer: (a) as described in Section 11.1, (b) if Dgraph reasonably believes that Customer has violated Section 2.6, (c) has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or (d) has otherwise taken any actions that threaten or challenge Dgraph’s intellectual property rights, including rights in and to any Dgraph Technology. Without limiting any other provision of this Section 6.2, if Customer fails to timely pay any fees, Dgraph may, without limitation to any of its other rights or remedies, suspend access to the Dgraph Technology until it receives all amounts due.

6.3. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and access to Dgraph Technology will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; and (iii) Customer has 30 days to request the return or deletion of Customer Data (after which time, Dgraph has no further obligation to store or permit retrieval of such Customer Data). The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.6 (Restrictions), 4.3 (Enforcement), 5 (Payment) 6.3 (Effect of Termination), 7 (Confidentiality); 8 (Data) Ownership; Data), 9 (Indemnification), 10 (Disclaimer; Limitation of Liability), and 11 (General).

7. Confidentiality

7.1. Definition. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure without a duty of confidence; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between Dgraph and Customer, the Dgraph Technology is the Confidential Information of Dgraph. The terms (but not the existence) of this Agreement is each party’s Confidential Information.

7.2. Use; Maintenance. Neither party will use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party will disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures designed to protect the secrecy, and avoid unauthorized access and use, or disclosure, of the Confidential Information of the other party, and will take at least those measures that it takes to protect its own confidential information of a similar nature. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Dgraph may list Customer as a customer in its promotional and marketing materials, including its website.

8. Data Matters

8.1. Customer Data. Customer Data processed by the Dgraph Service is and will remain, as between Dgraph and Customer, owned by Customer. Customer hereby grants Dgraph the right to process, transmit, store, use, and disclose Customer Data (a) to provide the Dgraph API and the Dgraph Service to Customer and End Users, (b) to improve, optimize, troubleshoot and create bug fixes for the Dgraph API, (c) for Dgraph’s business purposes, and (d) as otherwise set forth in this Agreement, including: (i) facilitating the provision of new products, updates, enhancements and other services, (ii) improving the Dgraph Service, and (iii) providing new products, services or technologies to Customer, End Users, and customers of Dgraph. Customer is solely responsible for (i) Customer Data as provided or supplied by Customer or any End Users, (ii) for complying with any privacy and data protection laws and regulations applicable to Customer Data and Customer’s and End Users’ use of the Dgraph Service, and (iii) for maintaining its equipment, the timely transmission of Customer Data, and the accuracy, quality, integrity, and reliability of Customer Data. To the extent Customer is subject to the General Data Protection Regulation, the provisions of the Data Protection Addendum located at https://dgraph.io/legal-notices/cloud-dpa shall apply.

8.2. Usage Data. Customer agrees that Dgraph may collect, create, use,  disclose and otherwise process aggregated or deidentified data derived from Customer Data or Customer’s End Users’ use of the Dgraph Service (collectively, “Usage Data”) for Dgraph’s business purposes, including benchmarking and capacity planning, provided that Usage Data will be in an aggregated and/or otherwise deidentified form only and will not identify Customer or End Users.

8.3. Data Security. Dgraph will use commercially reasonable industry standard security technologies designed to protect the security, integrity, and confidentiality of Customer Data.

8.4. Customer Responsibilities. Customer represents and warrants that it has obtained and will maintain all rights, consents, and authorizations required to grant Dgraph the rights set forth in this Section 8 and for Dgraph to process Customer Data and Usage Data in accordance with the terms of this Agreement.

9. Indemnification

9.1. By Dgraph. Dgraph will (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent that Customer’s use of the Dgraph Service as authorized in this Agreement constitutes an infringement of U.S. intellectual property rights of any third party, and (b) pay damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Dgraph; provided that Customer provides Dgraph (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Dgraph in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Dgraph may, at its sole option and expense: (1) procure for Customer the right to continue to use the applicable Dgraph Service; (2) modify the Dgraph Service to make it non-infringing; (3) replace the Dgraph Service with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate the applicable Dgraph Service or this Agreement. Notwithstanding the foregoing in this Section 9.1, Dgraph will have no liability to Customer for any claim arising out of or based upon the use of the Dgraph Service in combination with software, products or services not provided by Dgraph, Customer’s failure to use the Dgraph Service in accordance with this Agreement, or Dgraph’s data or Customer Data.

9.2. Disclaimer. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SECTION 9.1 STATES THE ENTIRE LIABILITY OF DGRAPH, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY DGRAPH OR THE DGRAPH SERVICE OR DGRAPH TECHNOLOGY OR ANY PART THEREOF.

9.3. By Customer. Notwithstanding anything to the contrary in Section 9.1, Customer will defend or, at its option, settle, any claim brought against Dgraph arising from: (a) the download, installation, duplication, storage, execution, display, performance, making of derivative works, use or distribution or transfer of any Customer Application or related documentation or any content or materials or derivative works or products used by or in the Customer Applications by any person or entity; (b) Customer’s breach of this Agreement or any Third-Party Terms; or (c) Dgraph’s use of Customer Data or Usage Data, and Customer will pay damages finally awarded against Dgraph (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Dgraph will provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Dgraph may appear, at its own expense, through counsel of its choice.

10. Disclaimer; Limitation of Liability

10.1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.

10.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DGRAPH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. DGRAPH DOES NOT WARRANT THAT THE DGRAPH TECHNOLOGY WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA.

10.3. Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 5, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT AND INDEMNIFICATION OBLIGATIONS AND INFRINGEMENT OF DGRAPH’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

10.4. Nothing in this agreement limits in any way Dgraph’s liability to Customer where it would be unlawful to do so, including to the extent applicable, liability for death or personal injury caused by Dgraph’s negligence, or for fraud or fraudulent misrepresentation.

11. General

11.1. Assignment. Customer must not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Dgraph, except that Customer may assign this Agreement upon notice to Dgraph as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions (“Change of Control”), provided that such Change of Control does not result in Customer becoming a competitor, or an Affiliate of a competitor, of Dgraph. If Customer undergoes a Change of Control in favor of a competitor of Dgraph, as determined by Dgraph in its sole discretion, then Dgraph will have the right to terminate this Agreement immediately. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

11.2. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, epidemic, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party will give the other party notice of such cause and will use its reasonable commercial efforts to correct such failure or delay in performance.

11.3. Governing Law. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.

11.4. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party (a) for Customer, to the address set forth in Customer’s account; and (b) for Dgraph, to 555 Bryant St. #208, Palo Alto, CA 94301 or [email protected]. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.4. Notices are deemed given 2 business days following the date of mailing, 1 business day following delivery to a courier, and the business day immediately following delivery by email, provided the sender does not receive a failed delivery message (in which case, no notice will be deemed to have been given).

11.5. Amendment. Except to the extent that Dgraph is expressly precluded by applicable law, Dgraph further reserves the right to make changes to this Agreement by providing Customer with reasonable notice of the changes (e.g., which notice may be sent to Customer via e-mail at the address Customer provided during registration or posted on the Dgraph developer website). Customer will be responsible for reviewing and becoming familiar with any and all such changes. If Customer continues to use any portion of the Dgraph Technology after notice of any changes has been provided or posted, Customer will be deemed to have accepted any and all such changes.

11.6. Government Use. The API Materials are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the Dgraph Technology by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.

11.5. Miscellaneous. This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to the subject matter. No terms of any purchase order, acknowledgment, or other form provided by Customer will modify this Agreement, regardless of any failure of Dgraph to object to such terms. Any ambiguity in this Agreement will be interpreted equitably without regard to which party drafted the language. Subject to Section 11.5, this Agreement may only be amended by a writing signed by both parties. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. The relationship between the parties will be that of independent contractors. Dgraph may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without the severed provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of Dgraph Technology, including those administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”). Customer will not directly or indirectly export, re-export or otherwise deliver Dgraph Technology to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Dgraph Technology pursuant to this Agreement under applicable laws, including Export Laws.

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