Master Services Agreement ArangoDB Inc. (August 2019)

Terms and Conditions
ArangoDB Inc. (“ArangoDB”) distributes and maintains both open source database and proprietary applications, which may be used for commercial purposes. These Terms and Conditions (hereinafter referred to as “Terms”) govern the contractual relationship between ArangoDB and any customer for whom ArangoDB has accepted an Order Form (a “Customer”).

1. Certain Definitions
   Any term not defined in the Terms shall have the meaning specified in the Order Form.
   1. “Agreement” means the Order Form and these Terms (which are incorporated by reference into the Order Form).
   2. “Developer” means any person who is involved in the development of the Software.
   3. “Open Source Software” refers to any software or software components which are made available and licensed under an “open source” or “copyleft” license or is a party to “open” or “public source” or similar licenses.
   4. “Order Form” refers to the order form which incorporates these Terms and sets out the services to be provided by ArangoDB and which has been executed by both Parties.
   5. “Parties” jointly refers to ArangoDB and Customer.
   6. “Software” refers to Software specified in the Order Form.
   7. “Software Documentation” means the applicable user documentation of the Software, available at https://arangodb.com/docs/stable which may be updated from time to time, provided by ArangoDB to Customer.
2. Subject matter of these Terms
   1. These Terms shall apply to the Software and Services to be provided by ArangoDB to Customer, as agreed in an Order Form. The scope of Software and Services to be provided by ArangoDB to Customer is exclusively set out in the Order Form, and no other person or entity other than Customer is authorized to utilize the Software or Services. In the event that these Terms contains provisions regarding software or services which are not explicitly agreed in the Order Form, ArangoDB shall have no obligations whatsoever provide such software or services to Customer.
   2. In the event of conflicts between the Order Form and these Terms, the provisions of the Order Form will take precedence over conflicting terms in these Terms only for the Services and Software identified in such Order Form. The terms of this Agreement will take precedence over conflicting terms in a purchase order, invoice or similar document.
3. License And Customer Obligations
   1. License
      1. Subject to Customer’s compliance with the terms and conditions of the Terms, ArangoDB grants Customer and only Customer, during the Term, a limited, nonexclusive, nonsublicensable, nontransferable, worldwide right under ArangoDB’s intellectual property rights to (i) use the Software (including the right to install and run the Software on Customer’s systems) only in accordance with the Software Documentation, and (ii) use the Software Documentation.
      2. Rights granted under Section 3.1.1 exclude, inter alia, the right to redistribute or make the Software otherwise available to the public, the right to translate any Software Documentation.
      3. The license granted according to this Section 3.1.1 excludes any and all components of the Software which are not owned or licensed by ArangoDB (“Third Party Components”), including Open Source Software, and which shall be disclosed by ArangoDB to Customer (e.g. as text files listing all Third Party Components and their respective licenses). Such Third Party Components are exclusively subject to their respective licenses and nothing in these Terms or any Order Form shall be construed as a waiver of or interference with such third party licenses.
      4. Except to the extent specified on the Order Form, ArangoDB has no other obligations to provide training, consulting, support or maintenance or updates, modifications or new releases under these terms or any related document. Any training, consulting, maintenance or support shall be provided under the terms and conditions set forth in the ArangoDB Support Services Terms and Conditions, which are also subject to the terms and conditions of the Terms. Any update, modification, or release, if any, provided by ArangoDB to Customer will be subject to all limitations, restrictions, and qualifications relating to Software, as well as Customer’s obligations with respect to Software.
      5. As between the Parties, ArangoDB retains all title to and ownership of and all proprietary rights with respect to the Software and Services and all copies and portions thereof, whether or not incorporated into or with other software. The license in Section 3.1.1 does not constitute a sale of the Software or any portion or copy of it, and Customer will maintain the copyright notice and any other notices that appear on the Software on any copies and any media.
   2. Customer Obligations
      1. Customer is solely responsible for, and will fulfil, the system requirements and operation and maintenance of the Software in accordance with the Software Documentation. The provision of necessary hard- and software is not part of this Agreement, and Customer is solely responsible for obtaining any required third party licenses. ArangoDB has no obligation to support such licenses under these Terms.
      2. ArangoDB shall provide Customer with Software Documentation in the English language in electronic form. Customer is not entitled to edit or distribute the documentation or the information on its use or to make any of it publicly available.
      3. ArangoDB may in its sole discretion continually develop the Software and provide Customer new features or technical improvements in form of updates. If ArangoDB provides updates to Customer, such updates shall be governed by the terms of these Terms including the provisions in Section 5 and 8. ArangoDB reserves the right to adjust the system requirements for updates to the technical needs, and Company is responsible to comply with those requirements before installing a new update.
      4. Customer will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Software (except as expressly and specifically authorized by ArangoDB in writing), (iii) possess or use any Software, or allow the transfer, transmission, export, or reexport of any Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency, (iv) disclose to any third party any benchmarking or comparative study involving any Software or (v) modify any Software or Software Documentation. Prior to disposing of any media or apparatus containing any part of the Software, Customer shall completely destroy any Software contained therein. All the limitations and restrictions on the Software in this Agreement also apply to Software Documentation. Further, Software licensed without charge or for a nominal charge will be deemed a free evaluation license and may be used for purposes of evaluation for a paid license only, and not for any productive use.
      5. Customer will use the Software for the Permitted Purposes and solely in accordance with the terms and conditions set out in this Agreement. Customer may make the Software available to its employees or employees of affiliated companies to the extent required for such Permitted Purposes. Customer may use the Software as an integral part of its own products which are provided on a software-as-a-service basis, provided that Customer’s product does not primarily provide mere access to the Software or essentially the same scope of functions as the Software (including without limitation, database-as-a-service) (“Permitted Purposes”).
      6. Upon request Customer will inform ArangoDB about number, data storage device and the repository of all copies (e.g. backup copies).
      7. Customer is responsible for the any data used in connection with the Software (and preservation thereof), including without limitation performing backups of such data.
   3. Auditing
      1. Customer shall keep and maintain true, accurate and complete books and records that are sufficient to meet the requirements of this Section, for the current calendar year. During the term of this Agreement and for 1 year thereafter, ArangoDB or its agents may, upon ten (10) days written notice (unless ArangoDB has specific reasons to believe the Software is not used as contractually agreed and that a notification would endanger the purpose of the audit), inspect the applicable facility, books and records (including without limitation the system environment used and the version number of the Software, documents and records to verify the contractual use, inspection of the hardware and software environment used with the Software) on a reasonable basis to verify Customer’s compliance with the pricing provisions of this Agreement. If errors of five percent (5%) or more in ArangoDB’s favor are discovered as a result of such examination or if Customer’s violation of these Terms has been found, Customer shall reimburse ArangoDB for the expense of such examination and pay the deficiency with interest immediately.
4. Warranty
   1. ArangoDB warrants for a period of thirty (30) days from the delivery of the first copy of the Software hereunder that such Software, as so delivered, will materially conform to ArangoDB’s then-current Software Documentation. This warranty covers only problems reported to ArangoDB during the warranty period. In no event does ArangoDB make any representation or warranty as to the ability of the Software in circumstances where data received for use by the Software is in formats other than those defined by the Software Documentation.
   2. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5.1, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, ARANGODB DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ARANGODB WILL HAVE NO LIABILITY FOR THE LOSS OR CORRUPTION OF ANY DATA STORED ON ANY SOFTWARE FOR ANY REASON.
5. Fees
   1. Customer shall pay the Total Fees set forth in the Order Form. Unless expressly stated otherwise, (i) all fees agreed in the Order Form are exclusive of shipping, taxes, duties and the like, which shall be paid by Customer, and (ii) ArangoDB shall issue an invoice at the beginning of the Effective Date, and Customer shall pay all invoiced amounts within 30 days after ArangoDB sends the invoice to Customer.
   2. Unless agreed otherwise in the respective Order Form, (i) ArangoDB will invoice out-of-pocket expenses (e.g., travel expenses, printing costs etc.) separately, based on the amount actually incurred, and (ii) the Customer shall reimburse travel expenses as specified in the Order Form, or if not specified, as follows: Car travel at a rate of $1.00 USD per mile driven, second class railway tickets, economy class airfare to the nearest destination, rental cars at the full-size category rate, other travel expenses as incurred.
6. Term and Termination
   1. Unless terminated earlier as provided herein, this Agreement shall have a term extending from the Effective Date until the term as specified on the Order Form. If such term is specified on the Order Form, then it shall automatically renew for additional term of the same duration, unless terminated with a 6 months notice prior to expiration (the “Term”). If the Order Form does not provide a term, then, subject to 7.2, its term shall be twelve (12) months and Services, if any, shall be deemed as onetime service.
   2. If the Order Form does not provide a term, then either Party may terminate this Agreement without cause by providing a three (3) months notice to the other Party, provided if Customer terminates without cause, Customer will not be entitled to receive any prepaid amounts and must pay any payable amounts due. Unless terminated under Section 7.3 and subject to Customer’s compliance with the terms and conditions of the Terms, ArangoDB’s obligation to provide the Services it has not provided prior to the termination under this Section 7.2 shall survive until performed by ArangoDB.
   3. This Agreement may be terminated by one Party immediately upon the occurrence of any of the following events: (i) if other Party fails to cure any material breach of these Terms within thirty (30) days (10 days in the case of nonpayment) of receiving notice of such breach (or immediately upon notice in the case of a breach of Section 3.2), or (ii) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other Party (and not dismissed within 120 days).
7. Limitation of Liability; Indemnification
   1. EXCEPT FOR BREACH OF SECTION 9 (CONFIDENTIALITY) AND LIABILITY ARISING UNDER SECTION 8.2 (INDEMNIFICATION), NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR THE OTHER PARTY’S LOST REVENUES, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE), EXEMPLARY OR PUNITIVE DAMAGES, AND EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER PAID TO ARANGODB UNDER THESE TERMS FOR THE 12 MONTHS PRECEDING THE SUBJECT CLAIM.
   2. ArangoDB shall hold Customer and its officers, directors, shareholders, agents and employees harmless from liability resulting from damages awarded to a third party by a final unappealed court judgment on account of such third party’s claim of infringement by the Software of any United States patent issued as of the date 60 days before delivery of the first copy of the applicable Software or any United States copyright, provided ArangoDB is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise; ArangoDB will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED. The foregoing obligation of ArangoDB does not apply with respect to Software or portions or components thereof (i) that are not exclusively developed, owned and supplied by ArangoDB, (ii) that are made in whole or in part in accordance with Customer specifications, (iii) that are modified after shipment by ArangoDB, if the alleged infringement relates to such modification, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) to the extent Customer continues allegedly infringing activity after being notified thereof or of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Software is incident to an infringement not resulting primarily from the Software or is not strictly in accordance with these Terms; Customer will indemnify ArangoDB and its officers, directors, shareholders, agents and employees from all damages, settlements, attorneys’ fees and expenses related to a claim of infringement or misappropriation excluded from ArangoDB’s indemnity obligation by this sentence.
8. Confidentiality
   1. Each Party shall keep confidential and not disclose to any other party or use, except as required by this Agreement, nonpublic information obtained from the other party (including without limitation the terms of this Agreement, the Software, Software Documentation which shall remain ArangoDB’s confidential information) ; provided, however, that neither party shall be prohibited from disclosing or using information, (i) that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the party having a confidentiality obligation under this section, (ii) that is or has been disclosed to such party by a third party who is not under (and to whom such party does not owe) an obligation of confidentiality with respect thereto, (iii) that is or has been independently acquired or developed by such party, (iv) to the minimum extent use or disclosure is required by court order or as otherwise required by law, on condition that notice of such requirement by law for such disclosure is given to the other parties prior to making any such use or disclosure. During the term of this Agreement, ArangoDB may use Customer’s name and logo on its website as part of a general client list. After termination or expiration of this Agreement, ArangoDB may continue using all printed media for twelve (12) months.
9. Miscellaneous
   1. Although fully assignable and transferable by ArangoDB, this Agreement (including all rights and obligations) is not assignable or transferable by Customer without the prior written consent of ArangoDB; any attempt to do so shall be void.
   2. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally or mailed by first-class, registered or certified U.S. mail, postage prepaid to the respective addresses of the parties as set forth in the Order Form for notices (or such other address as a party may designate by 10 days’ notice) and marked “Attention: Legal.”
   3. No failure to exercise, and no delay in exercising, on the part of either Party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
   4. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
   5. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
   6. The parties agree that a material breach of this Agreement adversely affecting ArangoDB’s proprietary rights in the Software would cause irreparable injury to Company for which monetary damages would not be an adequate remedy and that ArangoDB shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
   7. The Parties agree to have any dispute resolved by binding arbitration in the English language in New York City under the rules of JAMS by a single arbitrator selected in accordance with such rules, with the ruling of such arbitrator being enforceable in any court of competent jurisdiction; provided that either Party may in all cases apply to a court of competent jurisdiction for preliminary or injunctive relief. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
   8. Any waivers or amendments shall be effective only if made in writing by nonpreprinted agreements clearly understood by both parties to be an amendment or waiver and signed by a representative of the respective parties authorized to bind the parties.
   9. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
   10. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.
   11. Sections 1, 2, 3.2, 3.3, 5, 6, 7, 8, 9, and 10 shall survive any termination of this Agreement.