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ONgDB Subscription Agreement

Last updated: November 15, 2019

This Subscription Agreement (“Agreement”) is entered into by and between GraphGrid, Inc. (“GraphGrid”) and the purchaser that accepts the terms of this Agreement (“Company”). The effective date of this Agreement (“Effective Date”) is the date that Company enters into an Order Form with either GraphGrid or a GraphGrid-authorized reseller (“Reseller”).

1. Subscription, License and Support.

1.1  Subscription.  Company’s subscription includes Support Services and a license to ONgDB Software, as described below. The terms of this Agreement and the applicable ordering document (“Order Form”) (collectively, the Order Form and this Agreement constitute the “Agreement”).

1.2  License Terms.  GraphGrid conveys verbatim copies and modified source versions in non-source forms of The Graph Foundation’s ONgDB software located at (https://www.graphfoundation.org/projects/ongdb/) under the GNU AFFERO GENERAL PUBLIC LICENSE (https://www.gnu.org/licenses/agpl-3.0.en.html) without modifications (“AGPLv3”) including all notices (“ONgDB Software”).

1.3  No Restrictions on Use.  All copies of ONgDB Software that are conveyed by GraphGrid are free to use by Company under AGPLv3 without additional restrictions and no terms of this Agreement shall be interpretted to remove such freedoms.

1.4  Copies.  Section 1.2 includes the right for Company to make copies of the ONgDB Software as necessary to exercise the licenses granted in Section 1.2, and a reasonable number of back-up or archival copies, provided that each such copy shall include notices and copyrights that appear on the original copies of the ONgDB Software.

1.5  Ownership.  Company acknowledges that GraphGrid does not own any proprietary rights, title or interest, including any intellectual property rights, in and to the ONgDB Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest to Graph Foundation, Inc.

1.6  GraphGrid Audit Rights.  GraphGrid reserves the right, upon prior notice to Company, to audit usage of the ONgDB Software at Company’s premises (and at the premises of or via virtual access to Company’s hosting providers) during normal business hours to verify Company’s compliance with the terms of this Agreement. If GraphGrid determines as a result of such audit that any fees are due from Company to GraphGrid under the terms of this Agreement, Company shall immediately pay such amounts due along with interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or at the highest interest rate permitted by applicable law, whichever is less, calculated monthly from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative fees previously paid under this Agreement, Company shall reimburse GraphGrid for the reasonable cost of such audit.

1.7  Reservation of Rights.  GraphGrid reserves all rights not expressly granted in this Section 1. No rights are granted by implication.

1.8  Delivery of Materials.  ONgDB Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. The parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means.

1.9  Subscription Support Services.  GraphGrid will provide the support and maintenance services Company purchases as specified in the applicable Order Form and described in Exhibit A (“Support Services”).

1.10  Limited Waranty.

1.10.1  Scope of Limited Warranty.  GraphGrid warrants to Company that for a period of thirty (30) days after the first delivery of the ONgDB Software by GraphGrid to Company, the ONgDB Software in the form delivered by GraphGrid to Company, will perform substantially in accordance with the written documentation therefor. This limited warranty shall not apply if the ONgDB Software has been: (i) altered or modified; (ii) subjected to negligence, computer or electrical malfunction; or (iii) used, adjusted, installed or operated (A) other than in accordance with this Agreement or the instructions furnished by GraphGrid or (B) with an application or in an environment other than that intended or recommended by GraphGrid.

1.10.2  Exclusive Remedy.  GraphGrid’s sole liability and Company’s exclusive remedy under the limited warranty set forth above shall be, at GraphGrid’s election, to attempt, through reasonable efforts and where technically feasible, to correct any failure of the ONgDB Software to conform to its written documentation or to replace the non-conforming software. The above remedy is available only if (a) discovery of the non-conformity occurs during the applicable warranty period, (b) Company notifies GraphGrid in writing by Company of such discovery within the warranty period, and (c) GraphGrid’s examination of ONgDB Software discloses that such non-conformity exists.

2.  Training Services.

2.1  Company’s Order Form may include training services (“Training Services”) or advisory services (“Advisory Services”) engagements. Collectively, the Training Services and Advisory Services are called the “Services”.

2.2  GraphGrid will provide Company the Training Course(s) (defined below) purchased under the applicable Order Form. The Training Course(s) is/are subject to (a) the Order Form; and (b) this Agreement. If a provision of the Order Form conflicts with a provision of this Agreement, such provision of the Order Form will apply but only with respect to the Training Courses.

2.3  Instructor and Course Materials.  GraphGrid will supply an instructor to present the Training Course to the attendees. Course Materials (defined below) will be provided to attendees, subject to the license and use restrictions set forth herein.

2.4  Location and Date.  The Training Courses will be provided at the address specified in the Order Form or such other location mutually agreed in writing. GraphGrid will provide the Training Services on a date mutually agreed by Company and GraphGrid.

2.5  Payment Terms.  Unless otherwise specified in the Order Form, a non-refundable deposit of fifty percent (50%) of the Training Services Fees (“Deposit”) is due on the Effective Date of this Order Form to reserve the Training Course dates above. The balance is due within ten (10) days following the completion of the Training Course.

2.6  Cancellations and Changes.  Training Courses may be rescheduled subject to GraphGrid’s availability and as agreed by GraphGrid in writing, provided that Company requests such changes at least thirty (30) days prior to the Course Date. If Company cancels any Training Course within thirty (30) days of the scheduled Course Date, Company will remain responsible for all Training Services Fees for such Training Course.  If causes outside of either party’s reasonable control requires that a Training Course be rescheduled, GraphGrid and Company will agree in good faith on a mutually acceptable rescheduled date.  The Deposit shall only be applied to Training Services Fees for the course for which it is made.

2.7  Course Attendees.  Attendees must be Company employees or full-time contractors. Attendees are required to attend all days of any multiple day Courses.  Extra attendees, even if designated as observers or other non-participating attendees, are not permitted.

2.8  Remote Attendees.  If Company requests any attendees participate remotely, such remote attendees will count towards the maximum attendee limitation. Courses are hands-on and interactive, therefore remote attendees are not recommended. If remote attendees participate in Training Courses, it is Company’s responsibility to make remote conferencing arrangements for such remote attendees. Company must provide GraphGrid with reasonable advance notice if Company will have remote attendees participate in a Training Course.

2.9  Training Requirements.  Unless otherwise specified in writing to the Company, Company must provide the following classroom and equipment requirements for Training Courses:

2.9.1  Classroom-style room layout (desks facing the front) large enough to seat all attendees.

2.9.2  Projector capable of at least 1024×768 resolution, and screen.

2.9.3  Either a whiteboard or a flipchart, with pens.

2.9.4  Internet access for the instructor.

2.9.5  Attendee laptops: (a) VirtualBox 5.0 or greater installed (b) 64-bit processor, with VT-x enabled in the BIOS (c) at least 3GB of free RAM (so a minimum of 4GB RAM total)

2.10  Training Course Coordination.  Following execution of the Order Form, GraphGrid will contact Company to arrange a mutually acceptable date for delivery of the Training Courses. All Training Courses must be scheduled within one (1) year of the Order Form Effective Date or Company will forfeit the non-refundable Deposit.

2.11  Fees for additional attendees.  Unless otherwise specified in the Order Form, Fees for the Training Courses (“Training Services Fees”) include up to 10 attendees. Company may add up to 5 additional attendees (up to a maximum of 15 total attendees) at a rate of $1,000.00 U.S. dollars per day per additional attendee.

2.12  Course Materials.  GraphGrid has developed certain proprietary training materials relating to the Training Courses (“Course Materials”). The Course Materials, including any modifications, derivative works, improvements, or upgrades developed by or on behalf of GraphGrid or Company are the proprietary property of GraphGrid. As used herein, “Training Courses” shall mean the training courses provided by GraphGrid to Company as part of the Training Services.

2.13  License Grant to Course Materials.  Subject to the payment of the Training Services Fees, GraphGrid hereby grants to Company a limited, non-exclusive, non-sublicensable, non-transferable license to use the Course Materials solely in connection with the Training Courses provided by GraphGrid hereunder. GraphGrid reserves all rights not otherwise expressly granted in this Agreement. Company acknowledges this Agreement does not provide Company with title to or ownership of the Course Materials, but only a right of limited use under the terms and conditions of this Agreement. Company shall keep the Course Materials free and clear of all claims, liens and encumbrances. In the event ownership of any Course Material or modification thereto vests in Company, Company hereby assigns to Company all its right, title and interest in and to all intellectual property and other rights (and where relevant such assignment is by present assignment of future copyright) in such Course Material or modification, and waives any and all moral rights in such Course Material or modification to which it may now or in the future be entitled under the laws of any jurisdiction.

2.14  Additional Restrictions on Use.  Company acknowledges that the Course Materials may not be reproduced and Training Courses may not be recorded in any manner except as otherwise expressly specified in this Agreement. Copies of Course Materials shall be limited to those necessary to provide one copy per attendee of the Training Course.  Attendees shall not make any copies of the Course Materials other than for their own personal use.

3.  Advisory Services.

3.1  GraphGrid will provide Company with the Advisory Services purchased under the applicable Order Form (“Advisory Services”). The Advisory Services are subject to (a) the Order Form; and (b) this Agreement. If a provision of the Order Form conflicts with a provision of this Agreement, such provision of the Order Form will apply but only with respect to the Advisory Services.

3.2  Advisory Services are provided for knowledge transfer purposes only, therefore, (a) there are no specific deliverables provided under the applicable Order Form; and (b) any Advisory Materials provided will not be subject to acceptance testing or other acceptance process.

3.3  Company shall (a) identify technical resource(s) to work side by side with the GraphGrid advisor(s); and (b) ensure all required hardware and associated environments are ready and available.

3.4  GraphGrid will begin performing the Advisory Services on a date mutually agreed by Company and GraphGrid. All Advisory Services provided under the applicable Order Form will be performed within one (1) year of the Order Form Effective Date, unless expressly stated otherwise in the Order Form.

3.5  For each Advisory Services engagement, Company must schedule the full duration of the engagement at one time. Any extensions to an Advisory Services engagement must be for a minimum of two (2) days and will need to be agreed upon in advance by GraphGrid.

3.6  Except for the license granted to Company in the following section, Company acknowledges and agrees that GraphGrid or its licensors own and shall retain all rights, title and interest, including but not limited to all patent, copyright, trade secret, know-how, design rights, trademark, and other intellectual property rights, in and to any and all materials provided to Company in the course of the Advisory Services (“Advisory Materials”).

3.7  Subject to the payment of the Advisory Services fees, GraphGrid grants to Company a limited, non-exclusive, non-sublicensable, non-transferable license to use the Advisory Materials solely in connection with Company’s use of the ONgDB Software. Notwithstanding anything to the contrary herein, GraphGrid and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of performing Advisory Services.

4.  Fees, Taxes and Payment Terms.

4.1  Indirect Orders.  Sections 4.2 to 4.4 apply only to Order Forms placed directly with GraphGrid. If Company purchases through a Reseller, Company will pay Reseller for such purchase and different terms may apply.

4.2  Fees.  Company shall pay GraphGrid the fees in the amount set forth in the applicable Order Form (“Fees”) in accordance with the terms set forth therein.

4.3  Payment Terms.  Except as otherwise set forth in the applicable Order Form, all amounts payable to GraphGrid under this Agreement will be due within thirty (30) days from the date of an invoice. In addition, GraphGrid reserves the right to immediately suspend Company’s Subscription to the ONgDB Software or upon notice to Company for any failure by Company to pay any amount due and payable hereunder in accordance with this Section.

4.4  Taxes.  Company shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on GraphGrid’s net income. If Company is compelled to make a deduction or set-off for any such taxes, it will pay to GraphGrid such additional amounts as are necessary to ensure receipt by GraphGrid of the full amount GraphGrid would have received but for the deduction.

5.  Confidentiality.

5.1  Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (“Confidential Information”); provided, however that Modifications will be the Confidential Information of GraphGrid and not Company. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein which the receiving party agrees to enforce). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein which the receiving party agrees to enforce)) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

5.2  Remedies.  Each party acknowledges that any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

5.3  Disclaimer of Any Other Warranties.  EXCEPT FOR THE EXPRESS, LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT, GRAPHGRID MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE ONGDB SOFTWARE OR ANY OTHER MATERIALS, SUPPORT SERVICES, OR SERVICES PROVIDED HEREUNDER. GRAPHGRID SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ONGDB SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

6.  Infringement Indemnification.  GraphGrid shall defend or at its option settle, at its own expense, any third-party claim, demand or lawsuit brought against Company to the extent alleging facts that, if true would constitute an infringement by the ONgDB Software, Advisory Materials, or Course Materials as delivered to and unmodified by Company or an entity or person under Company’s control, of a third party intellectual property right, and will pay such damages or costs as are finally awarded against Company attributable to such action, provided that Company: (a) notifies GraphGrid promptly in writing of any such action; (b) gives GraphGrid sole control of the defense or settlement of such action; and (c) gives GraphGrid all reasonable information and assistance, at GraphGrid’s expense. Should the ONgDB Software, Advisory Materials or Course Materials become, or in the opinion of GraphGrid be likely to become, the subject of such an infringement claim, GraphGrid may, at its option: (i) procure for Company the right to use the ONgDB Software, Advisory Materials or Course Materials, as applicable, at no charge to Company; (ii) replace or modify, in whole or in part, the ONgDB Software, the Advisory Materials or the Course Materials, as applicable, to make it non-infringing; or (iii) accept return of the ONgDB Software, or remove the allegedly offending module thereof, and, refund a pro rata portion of the Fees paid by Company for the then-current Term. GraphGrid assumes no liability hereunder for any claim of infringement to the extent based on: (w) use of software other than a current unaltered release of the ONgDB Software, as provided by GraphGrid to Company; (x) the combination, operation or use of the ONgDB Software, with non-GraphGrid programs or hardware, (y) any alteration or modification of the ONgDB Software by a party other than GraphGrid, or (z) open source software. THIS SECTION SETS FORTH GRAPHGRID’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

7.  Limitation of Liability.  Except for (i) breaches of sections 1.2, 1.3, 2.13, and 3.7; (ii) breaches of section 5; and (iii) indemnification obligations:

(A) IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, AND

(B) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8.  Term and Termination.

8.1  Term.  Unless earlier terminated as provided in this Section 8 or specified in an Order Form, this Agreement and the licenses granted hereunder shall be effective as of the Effective Date and will continue until the expiration or termination of the Term specified in the Order Form (“Initial Term”). If no term is specified in the Order Form for a Subscription, the Initial Term for Subscription will be twelve (12) months. The Initial Term for the Subscription will automatically renew for periods of twelve (12) months at GraphGrid’s then-current pricing unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current Term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”).

8.2  Termination.  Either party shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than thirty (30) days after written notice of such default to the other party.  GraphGrid may also terminate this Agreement immediately if the Company: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

8.3  Effect of Termination.  The rights and obligations of GraphGrid and Company in Sections 1.6 (Audits); 1.7 (Reservation of Rights); 2.4 and 4 (Fees and Payment Terms); 1.4, 2.11 and 3.6 (Ownership); 5 (Confidentiality), 5.3 (Disclaimer of Any Other Warranties), 6 (Infringement Indemnification), 7 (Limitation of Liability), and 10 (Miscellaneous) shall survive termination of this Agreement.

9.  Independent Contractor.  GraphGrid and Company agree that in rendering all Services hereunder, GraphGrid and any person employed by GraphGrid to perform the Services shall act (and be considered for all purposes) as an independent contractor of Company, and not as an employee or agent of Company. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.  Each party may identify the other as a customer or supplier, as applicable.

10. Miscellaneous.

10.1  Assignment.  Company shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without GraphGrid’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, Company shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, conditioned upon (a) the parties’ mutual written agreement on any additional fees payable as a result of such assignment and (b) the payment of such fees. GraphGrid shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

10.2  Entire Agreement; Modification; Waiver.  This Agreement, together with the applicable Order Form, represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Company acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Company purchase order or other document, the terms and conditions of this Agreement shall prevail. Any different or additional terms of any related purchase order or confirmation even if signed by the parties after the date hereof shall have no force or effect. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

10.3  GraphGrid also makes available certain third party open source software as identified at https://www.graphgrid.com/third-party-software/ (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by GraphGrid at no charge. GraphGrid makes no warranties, express or implied, and will not be obligated under Section 6 with respect to any Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require GraphGrid to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.

10.4  User and Performance Data.  GraphGrid may from time to time use and process data about Company’s use of the ONgDB Software and Third Party Software for the purposes of creating statistics and analytics data. GraphGrid may use such data for its own business purposes, including to maintain and improve the ONgDB Software and to monitor and analyze its activities in connection with the performance of such services. Company acknowledges that certain features of the ONgDB Software are configured to collect and report telemetry data. Company may choose to disable transmission of this data at any time.

10.5  Delays.  In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

10.6  Governing Law.  This Agreement shall in all respects be governed by the laws of the State of Ohio without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Wayne County, Ohio. Company hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

10.7  Severability.  If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.

10.8  Relationship of the Parties.  Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party may identify the other as a customer or supplier, as applicable.

10.9  Notices.  All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.

10.10  Export Law Assurances.  Company understands that the ONgDB Software is subject to export control laws and regulations. COMPANY MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE ONGDB SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE ONGDB SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE-EXPORTED: (a) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (b) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. COMPANY HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT COMPANY IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

10.11  Construction.  The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”


EXHIBIT A

1. Support Services.  GraphGrid shall provide the support and maintenance services set forth in the GraphGrid Software Support Terms (https://www.graphgrid.com/ongdb/software-support-terms), corresponding to Support Level specified in the Order Form.

2.  GraphGrid Units.

2.1.  Unit Coverage.  A GraphGrid Unit (“GGU”) is a unit of hardware compute capacity consumed on an hourly basis. Fees for the Subscription are based on the quanity of GGUs Consumed during the Term of this Agreement, corresponding to Unit Coverage specified in the Order Form.

2.2.  Unit Rates.  The GGU Rate, given in U.S. Dollars, is the cost per GGU consumed and varies across Standard, Advanced and Premium Subscriptions, corresponding to Unit Rate specified in the Order Form.

2.3.  Unit Consumption.  GGU Consumption on AWS Cloud is published at https://www.graphgrid.com/pricing/aws and provided in the schedule below for supported AWS Instance Types. Consumption is computed monthly using thirty (30) days per month and annually using three-hundred-and-sixty (360) days per year for each AWS Instance running ONgDB.

2.4.  Unit Consumption Limits.  GGU Consumption is capped per AWS Instance deployed, at a quantity of GGUs per month, corresponding to the Consumption Cap in the Order Form. GGU Consumption has a minimum quanity of GGUs consumed per month, corresponding to the Consumption Minimum in the Order Form.