By agreeing to an Order Form that references this Master Subscription Agreement (this “Agreement”), you agree to this Agreement. If you represent an organization, you represent and warrant that you have the authority to agree to this Agreement on behalf of your organization.
Certain capitalized terms used herein are set forth below, and other terms shall have the respective meanings set forth elsewhere in this Agreement, the applicable Order Form or in the Community License (defined below).
“Agreement” means this Master Subscription Agreement.
“Company” means the company referenced in the applicable Order Form associated with this Agreement.
“Dgraph” means Dgraph Labs, Inc.
“Dgraph Website” means the website located at https://dgraph.io/.
“Initial Term” means the period specified on the first Order Form with Company.
“Order Form” means a Dgraph Order Form associated with this Agreement that has been signed and executed by both Company and Dgraph.
“Renewal Term(s)” means a period of one (1) year from the end of the Initial Term or any Renewal Term, unless this Agreement is otherwise terminated as set forth herein.
“Services” means Dgraph’s provision of technical support, as described in Attachment A hereto, as well as such other services as Dgraph may offer to licensees of the Dgraph Enterprise software as described on the Dgraph Website or on the applicable Order Form.
“Software” means Dgraph Enterprise software and related documentation as specified on the applicable Order Form.
“Subscription Fees” means the then-current subscription fees as set forth on the applicable Order Form.
“Term” means the Initial Term and any Renewal Term, as applicable.
2. Licenses and Services.
2.1. The Software is licensed to Company pursuant to the Dgraph Community License Agreement (the “Community License”) and this Agreement. The terms and conditions of the Community License are incorporated herein. In the event of a conflict between the terms and conditions of this Agreement and the Community License, this Agreement shall control.
2.2. During the Term, and subject to Company’s compliance with the terms and conditions of this Agreement, Dgraph shall provide the Services.
3. Payment; Taxes.
3.1. Subscription Fees are due in advance upon the commencement of each Term. All fees under this Agreement are due upon the dates set forth in the Order Form associated with this Agreement and are payable within thirty (30) days from the date of Dgraph’s invoice. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable.
3.2. Any amount not paid when required to be paid under this Agreement shall accrue interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) on the remaining amount required to be paid, or at the highest amount permitted by applicable law (if lower), such interest to accrue on a daily basis from the payable date until the remaining amount is paid.
3.3. All fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Company shall be responsible for payment of such taxes and duties of any kind, provided however that Dgraph shall be responsible for payment of taxes levied or imposed based upon Dgraph’s net income. Without limitation, Company will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Dgraph with an exemption certificate acceptable to the applicable authorities.
4. Term and Termination.
4.1. This Agreement shall commence on the effective date specified in the Order Form and continue for the Initial Term, unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive Renewal Terms of a period equal to the Initial Term or one (1) year, whichever is greater, unless either party gives at least thirty (30) days notice of non-renewal prior to the expiration of the applicable Term.
4.2. Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of material breach.
4.3. Dgraph may terminate this Agreement upon written notice to Company in the event of Company’s (a) unauthorized use of the Software (including breach of the Community License), (b) failure to make timely payment to Dgraph, (c) violation of Section 7 (Confidentiality), or (d) should the Software become, or in Dgraphs’ reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
4.4. Sections 1 (Definitions), 3 (Payment;Taxes), 4.4 (Term & Termination), 5 (Proprietary Rights), 6 (Warranty and Disclaimer), 7 (Confidentiality), 8 (Limitation of Liability), and 9 (Miscellaneous) of this Agreement shall survive the termination of this Agreement for any reason.
5. Proprietary Rights.
Except for the licenses explicitly granted in this Agreement and the Community License, all right, title and interest in and to the intellectual property and proprietary rights of whatever nature in the Software and the Services, including derivative works, are and shall remain the exclusive property of Dgraph and/or its suppliers, and nothing in this Agreement should be construed as transferring any aspects of such rights to Company or any third party. Dgraph and its suppliers reserve any and all rights not expressly granted in this Agreement. Dgraph Labs and Dgraph are trademarks of Dgraph Labs, Inc., and shall not be used by Company without Dgraph’s express authorization.
6. Warranty and Disclaimer.
EXCEPT AS SET FORTH IN THE COMMUNITY LICENSE, THE SERVICES ARE PROVIDED TO COMPANY “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE. DGRAPH AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. DGRAPH AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
7.1. Dgraph and Company will retain in confidence all information and know-how transmitted by the other party to it during the Term, and for a period of three (3) years beyond the Term, that is clearly designated as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought reasonably to be treated as proprietary and/or confidential, and will make no use of such information and know-how except to further the purposes set forth in this Agreement.
7.2. Notwithstanding Section 7.1, Dgraph and Company shall not have an obligation to maintain the confidentiality of information that (a) is now or subsequently becomes generally known or available by publication, commercial use or otherwise through no fault of the recipient; (b) is known by the recipient at the time of disclosure and is not subject to restriction; (c) is independently developed by the recipient without use of the discloser’s confidential information; or (d) is lawfully obtained from a third-party who has the right to make such disclosure. Further, the recipient may disclose confidential information as required by government or judicial order, provided the recipient gives the disclosing party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s confidential information.
8. Limitation of Liability.
8.1. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO DGRAPH (IN THE CASE OF COMPANY) OR ACTUALLY PAID TO DGRAPH BY COMPANY (IN THE CASE OF DGRAPH) DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.
9.1. Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
9.2. Assignment. Company may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Dgraph’s prior consent (at Dgraph’s sole discretion). Any attempt by Company to assign this Agreement without Dgraph’s prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third party beneficiaries of this Agreement.
9.3. No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Company more than one (1) year after the cause of action has accrued.
9.4. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in San Francisco County, California. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys’ fees and costs
9.5. Notices. Unless otherwise agreed to by the parties, any notice, authorization, or consent (“Notice”) required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to Dgraph at the address specified on the Dgraph Order Form or to Company at the address specified on the Order Form. Notice shall be deemed to have been received by a party, and shall be effective: (a) on the fifth (5th) business day after which such Notice is deposited prepaid in the local postal system; (b) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered or (c) one (1) business day after being sent electronically with a confirmed delivery receipt. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
9.6. Export Law Assurances. Company acknowledges that the Software may be subject to export and import control laws, and agrees to comply fully with those laws in connection with the Software. Company agrees that the Software is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Company hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
9.7. U.S. Government Restricted Rights. If the Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government’s rights in such Software and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, will be subject in all respects to the license rights and restrictions provided in the Community License and this Agreement.
9.8. Force Majeure. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
9.9. Publicity. Company hereby consents to Dgraph’s display of Company’s name and logo on Dgraph’s web site where Dgraph displays the names and logos of its customers, unless Company notifies Dgraph in writing that it no longer wishes to extend its consent.
9.10. Entire Agreement. This Agreement together with all applicable Order Forms and the Community License comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Dgraph reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to the Company. Company agrees that such reasonable notice may be provided by posting on the Dgraph Website; Company’s start, registration, or download pages; email; or other written notice. Except as otherwise set forth herein, this Agreement may be amended or modified only in a writing executed by both parties. Dgraph’s acceptance of any document submitted by Company to Dgraph shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Dgraph.
This Attachment A sets forth the support services that are included with the Subscription Fee. Capitalized terms used in this Attachment A and not otherwise defined in this Agreement shall have the meaning assigned thereto in the Community License.
1.1. “Authorized Contact” means those persons referenced in Section 4.5 of this Attachment A.
1.2. “Business Hours” means 9:00 a.m. to 6:00 p.m. Pacific US Time, Monday through Friday, excluding Federal Holidays.
1.3. “Error” means an error in the Software, which significantly degrades use of the Software as compared to the published and functional performance documentation for the Software.
1.4. “Fix” means the repair or replacement of object or executable code within the Software to remedy an Error.
1.5. “Severity 1” means that the Software is non- operational and there is no known Workaround.
1.6. “Severity 2” means a problem with the Software that causes a serious disruption which cannot be solved (temporarily) by a Workaround.
1.7. “Severity 3” means a non-critical problem in the Software and where Company is able to continue to use the Software and a Workaround is available.
1.8. “Severity 4” means a non-Severity 1, 2 or 3 Error.
1.9. “Service Hours” means twenty four (24) hours a day, seven (7) days a week.
1.10. “Support” means (a) the provision of Updates related to the Software; (b) assistance by email with respect to the use of the Software including without limitation (i) clarification of functions and features of the Software, (ii) clarification of the documentation, and/or (iii) guidance in the operation of the Software; and (c) Error verification, analysis and correction.
1.11. “Support Email” means to report a Severity 1 Error or Severity 2, Severity 3 or Severity 4 Error, an email notification from Company to Dgraph requesting Support.
1.12. “Support Reply Time” means the elapsed time between the receipt of a Support Email and the target time within which Dgraph begins Support as verified by a verbal or email confirmation to Company.
1.13. “Update” means an update, enhancement, modification, bug-fix, patch or error correction that Dgraph makes generally available to end users of the Software, excluding hardware, software or services for which Dgraph would generally charge an additional fee. Updates shall be deemed to be part of the Software for purposes of the Community License.
1.14. “Workaround” means a change in the procedures followed or data supplied by Company to avoid an Error without substantially impairing Company’s use of the Software.
2. Support Services.
For so long as Company is current in payment of the fees listed in the applicable Order Form and subject to the terms and conditions of the Community License, Company will receive Support as specified herein.
2.1. Company Support Center. Dgraph shall receive Support Emails from an Authorized Contact and, if the email is to report an Error, assign an Error priority level to the request.
2.2. Support Email Logging. Dgraph shall acknowledge receipt of Support Emails by email with a tracking number within the Support Reply Times.
2.3. Support Reply Times. Support for the Software is available with the following Support Reply Times:
Severity 1 – Production Outage
2 Service Hours
4 Business Hours
Severity 2 – High Priority
4 Service Hours
8 Business Hours
Severity 3 – System Impact
8 Business Hours
12 Business Hours
Severity 4 – Non-Critical
12 Business Hours
12 Business Hours
2.4. Response. Following acknowledgement by Dgraph in response to a Support Email in respect of a Severity 1 or 2 Error, Dgraph will work uninterrupted during Service Hours or Business Hours as the case may be, using commercially reasonable efforts to provide Company with a Workaround or Fix. Following acknowledgement of a Severity 3 Error, Dgraph will work using commercially reasonable efforts during Business Hours to provide Company with a Workaround or Fix. Following acknowledgement of a Severity 4 Error, Dgraph will use reasonable commercial efforts to incorporate any necessary changes with the next release of the Software, or provide a Fix or Workaround thereto, in its sole discretion.
2.5. External Issues. If Dgraph believes that a problem reported by Company may not be due to an Error in the Software, Dgraph will notify Company.
Support does not include services requested as a result of, or with respect to, causes which are not attributable to Dgraph or the Software (“Excluded Services”). Causes which are not attributable to Dgraph or the Software include, but are not limited to:
a) installation, modification, customization, alteration or addition or attempted installation, modification, customization, alteration or addition of the Software undertaken by any party other than Dgraph or an authorized designee of Dgraph;
b) Errors arising out of misuse, negligence, misapplication, or willful acts of Company or any third party;
c) any combination of the Software with any computer hardware or software not provided or approved in writing by Dgraph;
d) use of the Software other than in accordance with its documentation or the Community License; or
e) use of a version of the Software other than the current release or the two (2) immediately previous releases.
4. Company Responsibilities.
Dgraph’s provision of Support to Company is subject to the following.
4.1. Information. Company is responsible for providing sufficient information and data to allow Dgraph to readily reproduce all reported Errors.
4.2. Access. Company shall provide Dgraph with necessary access to the Software, personnel and equipment during Service Hours. This access includes the ability to remotely access the Software, subject to Company’s security procedures.
4.3. Report Errors. Company shall document and promptly report all detected Errors to Dgraph. At Dgraph’s direction, Company shall take all steps necessary to carry out procedures for the rectification of Errors within a reasonable time after such procedures have been received from Dgraphs.
4.4. Training. Company shall properly train Company’s personnel in the use and application of the Software, as may be specified in an Order Form.
4.5. Authorized Contacts. Company shall appoint two (2) trained individuals to serve as primary contacts between Company and Dgraph regarding the registry and report of Support Emails (each an “Authorized Contact”). All of Company Support Emails and Support inquiries shall be initialized through the Authorized Contacts.
5. Service Credits.
If Customer doesn’t receive an initial reply within the guaranteed Reply Time to more than four (4) Error incidents in a given quarter based on Dgraph’s fiscal year, Customer will be eligible for a credit. To honor the SLA, Dgraph will refund twenty percent (20%) of the quarterly Subscription Fee, as calculated on a pro rata basis, in cash. To receive the refund, Customer must submit a credit request.
5.1. The credit request must be made within thirty (30) days of the end of the quarter during which the incident tickets were not responded to within the designated Reply Time. Credit requests will not be honored if the relevant deadline has passed. Once the deadline passes, Customer will be deemed to have waived the ability to claim a refund for the qualified credit.
5.2. To receive a refund, Customer must submit a completed credit request to [email protected]. To be eligible, the credit request must:
(a) be received by Dgraph by the end of the 30th day after the quarter in which the four qualifying credits occurred; and
(b) include “Credit Request” in the subject line.
5.3. The following information must be included in Customer’s credit request:
(a) Date (the date must be within thirty (30) days after the quarter based on Dgraph’s fiscal year end in which the claims occurred: January 31, April 30, July 31, or October 31.)
(b) Customer Contact (Customer must specify both the name and email address).
(c) Customer Address Customer must specify its address.
(d) Qualifying Credits (Customer must provide the date of each qualifying credit and the associated ticket number).
THIS ATTACHMENT DEFINES A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. DGRAPH AND MATERIALS AND SERVICES RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THIS AGREEMENT AND THE COMMUNITY LICENSE. THIS ATTACHMENT DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THOSE AGREEMENTS.