Master Service Agreement ArangoDB Inc. - Germany (June 2023)

PLEASE READ THESE MASTER SERVICE AGREEMENT TERMS (“TERMS”) CAREFULLY BEFORE USING ANY OFFERING PROVIDED BY ARANGODB GMBH (“ARANGODB”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH ARANGODB WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CLIENT”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”). YOUR USE OF (I) THE ARANGODB OFFERING IS CONDITIONED ON, AND YOUR USE OF THE ARANGODB OFFERING SHALL CONSTITUTE, ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA ARANGODB’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY ARANGODB SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in this Agreement to the exclusion of all other terms.

ArangoDB licenses its technology in two different models; either through ArangoDB’s on-premises solution deployed on the Client’s environment (the “On-Prem Product”), or through ArangoDB’s hosted, ArangoGraph Insights software-as-a-service solution accessible to the Client through the internet (the “SaaS Product”; both products collectively referred to as the “ArangoDB Offering”). The Client chooses a model within each Order Form. This Agreement contains sections governing Client’s use of (i) the On-Prem Product, (ii) the SaaS Product, or (iii) either product.

1. 1. DEFINITIONS; GRANT OF LICENSE; OWNERSHIP; RESTRICTIONS.
      1. Certain Definitions.
         1. A “Core” is the virtual representation of one or more hardware threads. A hardware thread can be either a physical core, a hyper-threaded core, or a virtualized core assigned to a virtual machine or container.
         2. “Deployment” means a collection of one or more Nodes, forming a single database system, servicing a given workload or application.
         3. A “Node” is a single instance of a product running on a single server, which may be a physical server, server blade, virtual machine, software container, or cloud server. Note: the presence of more than one Node run on a single physical or virtual machine requires additional licenses.
      2. License to On-Prem Product. This Section 1.2 only applies if Client has purchased a license to the On-Prem Product: Subject to Client’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), ArangoDB grants Client a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use internally the On-Prem Product during the applicable Order Form Term (as defined below) for the internal business purposes of Client, only as provided herein for the number of Nodes and Cores, and the amount of RAM specified in each Order Form, and only in accordance with the designated user documentation for the On-Prem Product available at https://docs.ArangoDB.com/latest (the “Software Documentation”) which may be updated from time to time.
      3. Access to SaaS Product. This Section 1.3 only applies if Client has purchased access to the SaaS Product: Subject to Client’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), ArangoDB grants Client a limited, personal, non-sublicensable, non-transferable, nonexclusive license to access and use the SaaS Product during the applicable Order Form Term for the internal business purposes of Client, only as provided herein for the number of Nodes and Cores, and the amount of RAM specified in each Order Form, and only in accordance with ArangoDB’s Documentation. The SaaS Product is subject to modification from time to time at ArangoDB’s sole discretion, for any purpose deemed appropriate by ArangoDB. Access to the SaaS Product may require Client to install certain software applications. Client must comply with the current technical documentation applicable to the services as posted by ArangoDB and updated by ArangoDB from time to time at https://docs.arangodb.com/latest (the “Technical Documentation”).
      4. Proprietary Rights. As between the parties, ArangoDB retains all intellectual rights relating to the ArangoDB Offering and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the ArangoDB Offering, which are hereby assigned to ArangoDB. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
      5. Restrictions. Except as expressly set forth in this Agreement, Client shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the ArangoDB Offering (except to the extent applicable laws specifically prohibit such restrictions); (ii) modify, translate, or create derivative works based on the ArangoDB Offering; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the ArangoDB Offering; (iv) use the ArangoDB Offering for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the ArangoDB Offering or any portion thereof; (vi) use the ArangoDB Offering to build an application or product that is competitive with any ArangoDB product or service; (vii) interfere or attempt to interfere with the proper working of the ArangoDB Offering or any activities conducted on the ArangoDB Offering; or (viii) bypass any measures ArangoDB may use to prevent or restrict access to the ArangoDB Offering (or other accounts, computer systems or networks connected to the ArangoDB Offering). Client is responsible for all of Client’s activity in connection with the ArangoDB Offering. Client (a) shall use the ArangoDB Offering in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), unless to the extent compliance therewith is prohibited by applicable anti-boycott laws, and (b) shall not use the ArangoDB Offering in a manner that violates any third party intellectual property, contractual or other proprietary rights.

1. 1. PROFESSIONAL SERVICES. Upon payment of any applicable professional services fees and related expenses, ArangoDB agrees to use reasonable commercial efforts to provide agreed upon professional services only if and to the extent such professional services are set forth in an Order Form. Such services shall be considered services within the meaning of § 611 German Civil Code. If ArangoDB cannot complete the professional services within the estimated hours, or if ArangoDB provides additional professional services, Client will pay ArangoDB at its then-current hourly rates for consultation as specified in the applicable Order Form. ArangoDB retains ownership of all results of professional services.

1. 1. UPDATES; SUPPORT.
      1. ArangoDB Offering Support. ArangoDB will provide support and maintenance services for the ArangoDB Offering in accordance with the terms set forth on Exhibit A attached hereto. Such services shall be considered services within the meaning of § 611 German Civil Code. From time to time, ArangoDB may provide upgrades, patches, enhancements, or fixes for the ArangoDB Offering to its Clients generally without additional charge (“Updates”), and such Updates will become part of the ArangoDB Offering and subject to this Agreement; provided that, except as expressly set forth in Exhibit A, ArangoDB shall have no obligation under this Agreement or otherwise to provide any such Updates.
      2. Support Limitations. Client understands that, with respect to Sections 3.1 above, ArangoDB may cease supporting old versions or releases of the ArangoDB Offering at any time in its sole discretion; provided that ArangoDB shall use commercially reasonable efforts to give Client sixty (60) days prior notice of any major changes. In addition, Client understands that Client may be required to install certain updates on Client’s computers in order to continue using the ArangoDB Offering during the Order Form Term, and Client agrees to make any such updates in accordance with ArangoDB’s instructions.

1. 1. CONFIDENTIAL INFORMATION AND CLIENT DATA.
      1. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
      2. Feedback. Client may, in the course of using the ArangoDB Product Offering, provide data, comments or other feedback to ArangoDB with respect to the ArangoDB Product Offering (“Feedback”), and all Feedback is provided “AS IS” and without warranty of any kind. Client hereby grants ArangoDB a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit Client’s Feedback for any purpose.
      3. Client Data. For purposes of this Agreement, “Client Data” shall mean any data, information or other material provided, uploaded, or submitted by Client to the ArangoDB Offering in the course of using the ArangoDB Offering. Client shall retain all right, title and interest in and to the Client Data, including all intellectual property rights therein. Client, not ArangoDB, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data. ArangoDB shall use commercially reasonable efforts to maintain the security and integrity of the ArangoDB Offering and the Client Data. Client is responsible for Client’s use of the ArangoDB Offering and any breach of this Agreement by any person to whom Client has given access to the ArangoDB Offering. In any event, ArangoDB may aggregate data (including Client Data) and use such aggregated data to evaluate and improve the ArangoDB Offering and otherwise for its business purposes, provided that use of such aggregated data must be in anonymized form which can in no way be linked specifically to Client (“Aggregated Anonymous Data”). ArangoDB alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Aggregated Anonymous Data.
      4. EU Data Processing Addendum. This Section 4.4 only applies if Client has purchased access to the SaaS Product: In the event and to the extent that Client provides any Personal Data (as defined in the DPA) that is subject to certain Data Protection Laws (as defined in the DPA), Client shall abide by the EU Data Processing Addendum located at https://cloud.arangodb.com/data-processing-addendum (the “DPA”) which is hereby included and incorporated into this Agreement and may be updated from time to time by ArangoDB.
      5. California Consumer Privacy Act. This Section 4.5 only applies if Client has purchased access to the SaaS Product: The parties acknowledge and agree that ArangoDB is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from Client pursuant to this Agreement for a business purpose. ArangoDB shall not retain, use or disclose any personal information provided by Client pursuant to this Agreement except as necessary for the specific purpose of performing the services for Client pursuant to this Agreement, or otherwise as set forth in this Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. ArangoDB certifies that it understands the restrictions of this paragraph.

1. 1. LIMITED WARRANTY; DISCLAIMER.
      1. On-Prem Product Limited Warranty. This Section 5.1 only applies if Client has purchased a license to the On-Prem Product: ArangoDB warrants (gewährleistet) to Client only that for a period of thirty (30) days from initial delivery of the On-Prem Product, the On-Prem Product will materially conform to ArangoDB’s then current Software Documentation for such On-Prem Product; provided that Client’s sole remedy, in the event of a breach of the foregoing warranty will be, at ArangoDB’s option, to: (a) product replacement, (b) product repair, or (c) if replacement or repair is inadequate as a remedy (or in ArangoDB’s opinion, impractical), to terminate this Agreement upon notice at least in text form and refund the unused Fee amounts paid by client in advance (if any) on a pro-rata basis. 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 On-Prem Product in circumstances where data received for use by the On-Prem Product is in formats other than those defined by the Software Documentation. Client’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 7.
      2. SaaS Product Limited Warranty. This Section 5.2 only applies if Client has purchased access to the SaaS Product: With respect to the SaaS Product, ArangoDB warrants (gewährleistet) to Client only that during the Order Form Term, the SaaS Product will perform in material conformance with its then current Documentation for such SaaS Product; provided that Client’s sole remedy, in the event of a breach of the foregoing warranty shall be for ArangoDB to provide support to Client in accordance with Section 3.1 and if ArangoDB is unable to materially restore such conformance within thirty (30) days from the date of notice of said breach at least in text form, Client shall be entitled to terminate this Agreement upon notice at least in text form and receive a pro-rata refund of the unused Fee amounts which have been paid in advance (if any) for unused access to the SaaS Product. Client’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 7.
      3. Disclaimer. Prior to entering into this Agreement, Client has checked that the specifications of the ArangoDB Offering as described in the Software Documentation and Technical Documentation meet its needs and wishes. Client is aware of the essential functionalities and features of the ArangoDB Offering. The extent, nature and quality of the ArangoDB Offering to be delivered by ArangoDB are determined by this Agreement, the Order Form, the Software Documentation and Technical Documentation. Any other information or requirements only form part of this Agreement if the parties agree so in writing or if ArangoDB so confirms in writing. Product descriptions, illustrations, test programs, etc. represent mere Services specifications do not constitute guarantees (Garantien) or agreements on certain specifications (Beschaffenheitsvereinbarungen). In order to be valid, an agreement on a guarantee requires a written confirmation from a director of ArangoDB.

1. 1. INDEMNIFICATION. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to a claim that (i) in the case of ArangoDB as Indemnitor, the ArangoDB Offering infringes, violates, or misappropriates such third party’s intellectual property or proprietary right, or (ii) in the case of Client as Indemnitor, the Client Data or Client’s use of the ArangoDB Offering in violation of this Agreement infringes, violates, or misappropriates such third party’s intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (c) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of ArangoDB do not apply with respect to the ArangoDB Offering or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by ArangoDB (including without limitation any Client Data), (2) made in whole or in part in accordance to Client specifications, (3) modified after delivery by ArangoDB, (4) combined with other products, processes or materials not provided by ArangoDB (where the alleged Losses arise from or relate to such combination), (5) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (6) Client’s use of the ArangoDB Offering is not strictly in accordance herewith.

1. 1. LIMITATION OF LIABILITY. EXCEPT FOR (A) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, (B) EITHER PARTY’S BREACH OF SECTION 4.1 (CONFIDENTIAL INFORMATION) AND (C) CLIENT’S BREACH OF SECTION 1.4 (USE RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (AND PAYABLE) BY CLIENT TO ARANGODB HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
      1. Unrestricted Liability. Each party shall be unrestrictedly liable for (a) injury to life, body or health caused by such party, its legal representatives (gesetzliche Vertreter) or assistants in performance (Erfüllungsgehilfen); (b) damage caused intentionally (vorsätzlich) or with gross negligence (grob fahrlässig) by such party, its legal representatives or executive staff (leitende Angestellte); (c) damage caused intentionally by such party’s assistants in performance not mentioned in clause (b); (d) damage resulting from the absence of any guaranteed (garantiert) characteristics; and (e) claims under the German Product Liability Act (Produkthaftungsgesetz).
      2. Limited Liability. Each party shall be liable for damage resulting from the breach of its primary obligations (Kardinalpflichten) under this Agreement by such party itself, its legal representatives, its senior executives or its assistants in performance. Primary obligations are such basic duties which form the essence of this Agreement, which were decisive for the conclusion of this Agreement, and on the performance of which the respective other party may rely. If the breach of such primary obligation was caused (a) through simple negligence (leichte Fahrlässigkeit) by a party, its legal representatives or executive staff or (b) through simple or gross negligence by such party’s assistants in performance not mentioned in subsection (a), then such party’s ensuing liability shall be limited to the amount which was foreseeable by such party at the time the respective duty was performed.
      3. No Liability. Subject always to Sections 7.1 and 7.2, neither party shall be liable for damage resulting from the breach of non-primary obligations through (a) simple negligence of such party, its legal representatives or executive staff or (b) simple or gross negligence of such party’s assistants in performance not mentioned in subsection (a).
      4. No-fault Libaility. Any no-fault liability of ArangoDB for the existence of initial errors (anfängliche Mängel) under § 536a German Civil Code shall be excluded.
      5. Total Liability. Subject always to Section 7.1, the total liability of ArangoDB arising out of or in connection with this Agreement, whether in contract or tort or otherwise, shall in no circumstances exceed a sum equal to 100% of the total Fees paid (plus Fees payable) by Client in the 12 months immediately preceding the event which gave rise to the liability.
      6. Exclusion. Any other liability of a party not covered by this Clause 7 is excluded on the merits.

1. 1. FEES AND PAYMENTS. Client shall pay ArangoDB fees for the ArangoDB Offering as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, Client shall pay all Fees within thirty (30) days from date of invoice. Client shall pay a late fee on amounts that are not paid when due calculated on the basis of applicable German statutory interest rates. Client shall be responsible for all taxes associated with ArangoDB Offering (excluding taxes based on ArangoDB’s net income). All Fees paid are non-refundable and are not subject to set-off. If Client exceeds any user or usage limitations set forth on an Order Form, then (i) ArangoDB shall invoice Client for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at ArangoDB’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with Section 9 entitled “Term; Termination” below), such renewal shall include the additional fees for such excess users and usage.

1. 1. TERM; TERMINATION. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Upon expiration or earlier termination of this Agreement, all licenses to the On-Prem Product and SaaS Products shall immediately terminate, and Client shall cease all use of and access to both, and return or destroy all On-Prem Products and all copies of all On-Prem Products and Documentation in Client’s possession or control. The following provisions of this Agreement shall survive expiration or termination: sections 1.4, 1.5, 4.1, 5.3, 6, 7, 8, 9 and 10.

1. MISCELLANEOUS. This Agreement represents the entire agreement between Client and ArangoDB with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Client and ArangoDB with respect thereto. This Master Service Agreement shall govern and take precedence over any inconsistent or conflicting provisions set forth in any Exhibit, Documentation, Order Form or purchase order or the like (even if signed), unless and solely to the extent that the parties expressly state in a separate signed writing that they intend to override this Master Service Agreement. To the extent there are inconsistent or conflicting provisions set forth in an Exhibit and Order Form, the Order Form shall govern so long as it is executed by both parties. The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this Agreement or its terms. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the courts located in Cologne, Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Unless provided otherwise herein, all notices under this Agreement shall be at least in text form and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for Client as set forth on the Order Form and for ArangoDB to legal@arangodb.com. Either party may update its address set forth above by giving notice in accordance with this Section 10. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Where this Agreement uses the expressions ‘in writing’, ‘in written form’ or variations thereof, this shall mean ‘in writing’ within the meaning of the German Civil Code. The electronic exchange of copies of documents signed by hand as well as documents signed with a simple electronic signature (e.g. DocuSign or Adobe Sign) shall suffice therefor, while simple emails shall not suffice. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lockouts or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement (“Change in Control”), provided further that Client’s rights and obligations may not be assigned to a competitor of ArangoDB, and (ii) upon any assignment of this Agreement by Client in connection with a Change in Control, any ArangoDB Offering license that contains an “unlimited” feature will, with respect to Client or the successor entity, as applicable, be capped at the number of authorized licensed units in use immediately prior to such Change in Control and (iii) ArangoDB may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. Should any provision of this Agreement be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions of this Agreement shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what the parties would have agreed, pursuant to the meaning and purpose of the original provision and of this Agreement, if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in this Agreement that was not intended by the Parties. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.