IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS NEO4J EMERGING OEM TERMS OF USE (THIS “AGREEMENT”). BY AGREEING TO AN ORDER FORM (“ORDER FORM”) INCORPORATING THIS AGREEMENT OR USING THE NEO4J SOFTWARE (“SOFTWARE”), WHICHEVER OCCURS FIRST, YOU (“OEM”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH NEO4J SWEDEN AB (“NEO4J”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE NEO4J SOFTWARE (“SOFTWARE”). THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT OEM ACCEPTS THIS AGREEMENT.
1. Scope of Agreement.
(a) Software and Support Services. This Agreement sets forth the terms and conditions under which OEM may purchase from Neo4j: (i) licenses to embed or integrate the Software into OEM’s hardware and/or software products identified on the Order Form (each, an “OEM Product”) for distribution and sale to end users (each, an “End User”) both directly and through OEM’s third party distributors (each, a “Distributor”); and (ii) support and maintenance services (“Support Services”).
2. Software.
(a) License Grant. Subject to OEM’s compliance with the terms and conditions of this Agreement, Neo4j hereby grants OEM a limited, personal, revocable, non-transferable, non-sublicensable, non- exclusive license during the License Period set forth in the Order Form in the territory specified in the applicable Order Form, to: (i) use, perform, and reproduce the Software (in object code only) for purposes of embedding or otherwise integrating the Software into the OEM Products; and (ii) market, distribute and resell the Software (in object code only) as embedded or integrated into the OEM Products to End Users, both directly and through Distributors, in each case for use by End Users for such End Users’ business purposes. The Software will be made available to OEM under this Agreement in object code only; no source code is provided to OEM under this Agreement.
(b) Mandatory Terms. OEM is only licensed to distribute the Software pursuant to Section 2(a) (License Grant) above, on condition that each OEM Product is accompanied by an end user license agreement (or comparable agreement) that contains terms that are no less protective of Neo4j than the terms of this Agreement, including without limitation, the following terms: Section 2(d) (Restrictions)(except that the End User may use the OEM Product to develop an application which End User uses to provide products or services to third parties on condition that the End User does not distribute the Software to any third party or permit any third party to copy or download the Software), 2(e) (Proprietary Rights), 2(f) (Third Party Software), 6(a) (Feedback), 7(c) (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Government Rights), and 11 (Export), (collectively, the “Mandatory Terms”). In addition, to the extent OEM distributes OEM Products to End Users through a Distributor, OEM will ensure that OEM executes a distribution agreement (or comparable agreement) with each Distributor which: (i) contains terms that are no less protective of Neo4j than the terms of this Agreement, including without limitation, the Mandatory Terms; and (ii) requires each Distributor to pass on OEM’s end user license terms as referred to above in this Section 2(b), with each OEM Product that Distributor distributes to an End User. If OEM makes any claim, representation or warranty regarding the Software that is different from or in addition to those set forth in this Agreement, OEM shall be solely and exclusively responsible for such claim, representation or warranty and Neo4j shall have no liability for any such claim, representation or warranty. As between Neo4j and OEM, OEM is responsible for all acts and omissions of OEM’s Distributors and End Users in connection with their use of the Software and OEM will reasonably cooperate with Neo4j in connection with any prohibited activities of any Distributor or End User in connection with the Software and OEM will promptly notify Neo4j if OEM becomes aware of any such prohibited activities.
(c) Delivery and Acceptance. Following execution of this Agreement, Neo4j shall enable OEM to download the Software from the Neo4j website (“Site”), or shall otherwise make the Software available to OEM. The Software (and any future Software updates or upgrades that Neo4j may make available to OEM from time-to-time and which are included in the defined term “Software”) will be deemed accepted upon Neo4j making the Software (or the relevant update or upgrade) available to OEM. Notwithstanding the fact that OEM may already have obtained an edition of the Software from Neo4j prior to the Effective Date for OEM’s use under separate software license terms such as the AGPL, GPL or any other open source license, to the extent OEM uses the Software pursuant to the terms of this Agreement (as evidenced by OEM entering into this Agreement), OEM’s use of the Software is solely and exclusively governed by the terms of this Agreement.
(d) Restrictions. OEM may not, and will not permit or induce any third party (including, without limitation, any Distributor or End User) to: (i) distribute the Software in standalone form; (ii) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software; (iii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Software; (iv) except as expressly permitted in Section 2(a) of this Agreement, rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer the Software or any copy thereof; (v) use the Software to provide any services to third parties or in any commercial timesharing, rental or other sharing arrangements; (vi) remove any proprietary notices from the Software or any related documentation or other materials furnished or made available hereunder; or (vii) run an instance of the Software licensed hereunder in any project or system that also runs any edition of the Software licensed under the AGPL, GPL or any other open source license. In addition, OEM agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to OEM’s use of the Software. OEM acknowledges and agrees that the Software includes functionality that reports the number of Instances being used and permits Neo4j the ability to provide Support Services and monitor certain usage of the Software (“Critical Control Software”) which is fundamental to the business of Neo4j.
(e) Proprietary Rights. Neo4j or its licensors retain all right, title and interest in and to the Software and related documentation and materials, including, without limitation, all patent, copyright, trademark, and trade secret rights, embodied in, or otherwise applicable to the Software, whether such rights are registered or unregistered, and wherever in the world those rights may exist. OEM shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with Neo4j’s or its licensors’ rights, title and interest in and to the Software and the intellectual property rights embodied therein or applicable thereto. All materials embodied in, or comprising the Software, including, but not limited to, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Software and its content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (“Neo4j Marks”), are all owned by Neo4j or its licensors; OEM is expressly prohibited from using the Neo4j Marks except as expressly permitted under Section 2(g) (Trademark License) below. Title to the Software shall not pass from Neo4j to OEM or its Distributors or any End Users, and the Software and all copies thereof shall at all times remain the sole and exclusive property of Neo4j. OEM’s embedding or integration of the Software into the OEM Products is not considered a derivative work. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Neo4j.
(f) Third Party Software. Neo4j may in its sole discretion, make available third party software (“Third Party Software embedded in, or otherwise provided with, the Software. Third Party Software is expressly excluded from the defined term “Software” as used throughout this Agreement. OEM’s use of the Third Party Software is subject to the applicable third party license terms which can be viewed at https://neo4j.com/terms/thirdpartylicenses/, and such Third Party Software is not licensed to OEM under the terms of this Agreement. If OEM does not agree to abide by the applicable license terms for the Third Party Software, then OEM may not access or use the Software or the Third Party Software. OEM is solely and exclusively responsible for determining if OEM is permitted to use the Third Party Software in connection with the OEM Products and OEM should address any questions in this regard directly to the relevant Third Party Software licensor. Neo4j makes no representation or warranty that OEM, End Users or Distributors are entitled to use the Third Party Software in connection with the OEM Products.
(g) Trademark License. Neo4j hereby grants to OEM a limited, personal, revocable, non- transferable, non-sublicensable, non-exclusive license during the License Period, in the territory specified in the applicable Order Form, to use the Neo4j Marks on all copies of the Software embedded in or integrated into the OEM Products and in connection with OEM’s marketing and distribution of the OEM Products. Neo4j shall have the right to approve OEM’s use of the Neo4j Marks. Prior to OEM’s using the Neo4j Marks, OEM shall submit a written request for approval of such use to Neo4j. Neo4j shall not unreasonably withhold or delay its consent to any use by OEM of the Neo4j Marks. OEM may submit revised requests for approval of any use of the Neo4j Marks to which Neo4j objected. OEM agrees to cooperate with Neo4j in facilitating Neo4j’s oversight of OEM’s use of the Neo4j Marks. Neo4j shall have the right to receive free samples of all advertising and promotional materials on which such trademarks are used. OEM shall comply with all requests from Neo4j to correct any improper uses of the Neo4j Marks. Any copy of the Software or related documentation (or any portion thereof) made by OEM shall include the copyright, trademark and other proprietary rights notices as are contained on each copy of the Software or Documentation when delivered to OEM. OEM’s Distributors are not licensed to use the Neo4j Marks, except to the extent they distribute OEM Products that bear Neo4j Marks which OEM has placed on such OEM Products as permitted in this Section 2(g). OEM hereby acknowledges that its use of any Neo4j Marks inures solely to the benefit of Neo4j and that OEM does not acquire any rights in the Neo4j Marks as a result of such use.
(h) Inspection Right. During License Period and for one (1) year thereafter, Neo4j or its designated agent may inspect OEM’s facilities and records to verify OEM’s compliance with the terms of this Agreement. Any such inspection will take place only during OEM’s normal business hours and upon not less than ten (10) business days’ prior written notice from Neo4j. OEM shall reasonably cooperate with such audit and shall make such personnel and records available as Neo4j may reasonably request. Neo4j will give OEM written notice of any non-compliance, including any use of the Software or Support Services beyond that authorized under this Agreement and without limiting Neo4j’s remedies arising from such unauthorized use, OEM shall promptly: (i) cease such unauthorized use; (ii) pay Neo4j any additional fees due in connection with OEM’s use of the Software; and (iii) reimburse Neo4j’s reasonable, documented costs incurred in conducting such inspection.
(i) Expenses. OEM shall bear all costs and expenses of exercising its rights under this Agreement, including without limitation, the cost of developing the OEM Products, embedding or integrating the Software into the OEM Products, and marketing and distributing the OEM Products.
3. Support Services. By executing an Order Form for the Support Services and paying the applicable Support Services, OEM is entitled to receive standard Support Services. Neo4j will provide Support Services during the applicable Support Services term set forth in each Order Form in accordance with Neo4j’s then-current Support Services terms, as further specified on the Site at https://neo4j.com/terms/support-terms/ (the “Support Site”), which terms form an integral part of this Agreement and are incorporated herein by reference (“Support Services Terms”). OEM is required to purchase Support Services during the first twelve (12) months of any Software license term. Neo4j may add to, change or remove any part, term or condition of the Support Services Terms at any time without prior notice to OEM; provided however, that any such changes which occur during the then-current Support Services term (as specified in the applicable Order Form) which materially diminish the benefit of the Support Services, will not take effect for OEM until the start of the next Support Services term. By continuing to use the Support Services, OEM is indicating its acceptance of such changes. It is OEM’s responsibility to check the Support Services Terms periodically for changes, however, Neo4j will provide written notice to OEM of any significant changes to the Support Services Terms, including through notices posted on the Support Site or sent to OEM’s e-mail address. OEM is solely and exclusively responsible for providing all support and maintenance services to its Distributors and all End Users; and Neo4j has no obligation to provide any support and maintenance services to Distributors or End Users.
4. Fees & Payment Terms.
(a) Fees. The fees payable by OEM for the licenses granted herein and the Support Services will be set forth in each Order Form.
(b) Payment Terms. All payments due under this Agreement shall be made in currently available funds and payments may be made by check, wire transfer, or by such other means as Neo4j may specify from time-to-time. Checks should be made payable to ‘Neo4j Sweden AB’ and checks should be mailed to Neo4j at the address set forth in the Order Form. Unless otherwise expressly agreed by Neo4j and specified in the applicable Order Form, all fees are payable in the currency of the United States of America. Any amounts due under this Agreement which are not paid within thirty (30) calendar days of their due date shall be subject to a late payment charge of the lower of: (i) one and one half percent (1.5%) per month (and shall thereafter bear interest at a rate of eighteen percent (18%) per annum until paid); and (ii) the highest interest rate permitted by applicable law. Each party is responsible for its own expenses under this Agreement. All fees payable under this Agreement are non-refundable. Neo4j will not issue any invoices for the fees due hereunder unless expressly requested by OEM; provided however, that all fees are automatically due as set forth in this Section 4, irrespective of the date of issue of any invoice.
(c) Taxes. As between Neo4j and OEM, OEM will pay, and will hold Neo4j harmless from, all taxes, customs, duties, levies, or similar charges now or hereafter imposed or based upon the manufacture, distribution, or sale of the OEM Products or license of the Software hereunder (except for taxes payable on Neo4j’s own income), which payments will not be deducted from any other payments made hereunder. If all or any part of any payment owed to Neo4j under this Agreement is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Neo4j of the amounts otherwise payable under this Agreement.
(d) Changes to Fees. Neo4j may change its fees, royalty and payment terms at its discretion; provided however, that such changes will not take effect for OEM until: (i) the start of the next Software License Period (as specified in the applicable Order Form); or (ii) the start of the next Support Services term (as specified in the applicable Order Form). Neo4j will provide written notice to OEM of any changes to the fees that affect the Software and Support Services OEM has purchased, including through notices posted on the Site or sent to OEM’s e-mail address.
5. Term & Termination.
(a) Term. Subject to termination as set forth in this Section 5, the term of this Agreement will commence on the Effective Date and will continue until the end of the License Period set forth in the Order Form. Prior to expiration of the License Period, the parties may mutually agree in writing to extend the License Period pursuant to a new Order Form.
(b) Termination. Neo4j may terminate this Agreement immediately with or without notice if the OEM breaches its obligations under this Agreement. OEM may terminate this Agreement immediately by ceasing use and distribution of the Software.
(c) Effects of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Software shall immediately terminate, and except as set forth in Section 5(d) (Sale of Inventory) below, OEM and its Distributors shall cease all sale and distribution of OEM Products; (ii) Neo4j’s obligations to perform the Support Services shall immediately terminate; (iii) OEM shall pay to Neo4j the full amount of any outstanding fees due hereunder; and (iv) within ten (10) calendar days of such termination, each party shall destroy or return all confidential and/or proprietary information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: Sections 2(b) (Mandatory Terms), 2(c) (Delivery and Acceptance) (last sentence only), 2(d) (Restrictions), 2(e) (Proprietary Rights), 2(f) (Third Party Software), 2(g) (Trademark License) (last sentence only), 2(h) (Inspection Right), 4 (Fees & Payment Terms), 5(c) (Effects of Termination), 5(d) (Sale of Inventory) (for the period stated therein), 6(a) (Feedback), 7(c) (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitation of Liability) and 12 (General Provisions).
(d) Sale of Inventory. Unless Neo4j terminates this Agreement pursuant to Section 5(b) (Termination) above, OEM (and its Distributors) shall for a period of sixty (60) calendar days after the effective date of termination of this Agreement, be entitled to sell remaining OEM Products in OEM’s (and its Distributors’) inventory as of the effective date of termination of this Agreement, but only to the extent such OEM Products include hardware into which the Software is embedded or integrated (i.e., there is no residual distribution right of software-only OEM Products). All applicable terms of this Agreement (including, without limitation, the obligation to pay fees in respect of sales of OEM Products) shall remain in full force and effect during such sixty (60) calendar day period. Any remaining inventory of OEM Products in OEM’s and its Distributors’ possession after such sixty (60) calendar day period must be destroyed at OEM’s and its Distributors’ expense.
6. Feedback & Publicity.
(a) Feedback. To the extent OEM sends or transmits any communications, comments, questions, suggestions, or related materials to Neo4j, whether by letter, e-mail, telephone, or otherwise (“Feedback”), whether originating from OEM, a Distributor or an End User, suggesting or recommending changes to the Software or Support Services, including, without limitation, new features or functionality relating thereto, OEM hereby grants Neo4j a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully- transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under OEM’s and its licensors’ intellectual property rights to reproduce, prepare derivative works of, distribute, perform, display, and otherwise fully use, practice and exploit such Feedback for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. OEM agrees and understands that Neo4j is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and OEM has no right to compel such use, display, reproduction, or distribution.
(b) Publicity. During the License Period, OEM hereby agrees that Neo4j shall have the right, but not the obligation, to include OEM’s name and logo as a customer who uses the Software and/or Support Services on the Site and in other marketing materials promoting the Software and Support Services. OEM further agrees to participate in Neo4j’s customer reference program and commits to perform the tasks set forth on the Order Form. At all times OEM and OEM’s performance of the foregoing obligations shall reflect favorably on Neo4j and the Software.
7. Warranties & Disclaimer of Warranties.
(a) OEM Covenants. OEM covenants, represents and warrants that: (i) OEM complies with the eligibility requirements set forth in the Order Form. If the foregoing changes or becomes false at time during the term of this Agreement, then: (a) OEM shall promptly notify Neo4j in writing within sixty (60) days of the date of such change, or within sixty (60) days from the end of the License Period, whichever occurs sooner and (b) this Agreement and the rights granted hereunder shall remain valid throughout the remainder of the License Period, after which time OEM will be required to pay a mutually agreed upon fee for the continued use and distribution of the Software beyond the License Period, based on the Neo4j’s then-current list price (such fee to be mutually agreed upon in a written amendment to and/or new Order Form to this Agreement).
(b) Limited Software Warranty. Neo4j represents and warrants to OEM only (and not to any Distributor or End User), that the Software when used for its intended purpose and in accordance with Neo4j’s instructions, will materially conform to Neo4j’s published specifications for a period of ninety (90) calendar days from the date OEM is first permitted to access and use the Software under Section 2(c) (Delivery and Acceptance) above. OEM’s sole and exclusive remedy, and Neo4j’s sole and exclusive liability for any breach of this warranty will be, at Neo4j’s sole discretion, to either fix the Software to remedy the defect or refund the applicable Software license fees paid by OEM for the Software, in each case on condition that OEM promptly notifies Neo4j in writing of any alleged breach of this warranty within such ninety (90) calendar day period. This warranty is null and void to the extent the Software: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; or (ii) is used for an unintendedpurpose, is used other than in accordance with its published documentation or specifications, or is otherwise used in breach of this Agreement.
(c) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 7: (I) THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND (II) NEO4J EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEO4J DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET OEM’S OR ANY DISTRIBUTOR’S OR END USER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SUPPORT SERVICES WILL BE CORRECTED. OEM EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE AND SUPPORT SERVICES AND ALL RESULTS OF SUCH USE IS SOLELY AT OEM’S, ITS DISTRIBUTORS’ AND END USERS’ OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEO4J OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO OEM. IN SUCH EVENT, NEO4J’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SUPPORT SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
8. Indemnification.
(a) Indemnification. OEM hereby agrees to indemnify, defend and hold harmless Neo4j and its parents, affiliates, subsidiaries, licensors, and third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, a “Neo4j Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any Neo4j Party in connection with any actual or alleged claim arising out of, or relating to: (i) OEM’s breach of this Agreement, any license applicable to the Third Party Software, or any applicable law, rule or regulation; (ii) OEM’s use of the Software and Support Services, including, without limitation, OEM’s development, use, distribution, sale, and support of OEM Products, and Distributors’ and End Users’ use of OEM Products (except to the extent Neo4j is responsible for the event giving rise to OEM’s liability under this Section 8(a)(ii)); (iii) any breach by a Distributor or End User of the Mandatory Terms; and (iv) OEM’s gross negligence, fraudulent misrepresentation or willful misconduct.
(b) Procedure. Counsel OEM selects for the defense or settlement of a claim must be consented to by Neo4j prior to counsel being engaged to represent any Neo4j Party. OEM and OEM’s counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by Neo4j in the defense or settlement of any claim. Neo4j reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by OEM. OEM shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any Neo4j Party without the prior written consent of each relevant Neo4j Party.
9. Limitation of Liability.
(a) Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, SHALL ANY NEO4J PARTY BE LIABLE TO OEM, ANY DISTRIBUTOR, ANY END USER, OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF A NEO4J PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation of Damages. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL THE NEO4J PARTIES’ TOTAL CUMULATIVE LIABILITY TO OEM, OR TO ANY DISTRIBUTOR OR END USER, OR ANY OTHER PERSON OR ENTITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY OEM TO NEO4J DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE NEO4J PARTIES’ LIABILITY.
(c) Liability for Third Party Software. NOTWITHSTANDING SECTION 2(F) (THIRD PARTY SOFTWARE) ABOVE, IF ANY LIABILITY ATTACHES TO ANY NEO4J PARTY IN RESPECT OF THIRD PARTY SOFTWARE, SUCH LIABILITY WILL BE LIMITED BY THIS SECTION 9 AND THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 7(C) (DISCLAIMER OF WARRANTIES) ABOVE.
(d) Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO OEM. IN SUCH EVENT, THE LIABILITY OF EACH NEO4J PARTY FOR SUCH DAMAGES WITH RESPECT TO THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION. The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties. This allocation of risk is an essential element of the basis of the bargain between the parties.
10. Government Rights. The Software licensed to OEM under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and
12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
11. Export. OEM acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America or foreign origin, including the Software. OEM agrees that it will not export or re-export the Software without the appropriate United States or foreign government licenses or permits.
12. General . This Agreement will be construed and enforced in all respects in accordance with the laws of the United Kingdom, without reference to its choice of law rules. Except as set forth below in this Section 11, the courts seated in London, United Kingdom, will have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, this Agreement, and each party hereby irrevocably waives any objection to such exclusive jurisdiction. Notwithstanding anything in this Agreement to the contrary, Neo4j may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors, and OEM hereby submits to the exclusive jurisdiction of such courts and waives any objection thereto on the basis of improper venue, inconvenience of the forum or any other grounds. OEM agrees that any breach of the license restrictions or other infringement or misappropriation of the intellectual property rights of Neo4j or its licensors will result in immediate and irreparable damage to Neo4j for which there is no adequate remedy at law. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Software and Support Services provided hereunder. Furthermore, this Agreement (including without limitation, the Software and Support Services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. OEM consents to receive communications from Neo4j electronically, including by e-mail and notices posted on the Site. OEM agrees that all agreements, notices, disclosures, and other communications that Neo4j provides to OEM electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law. OEM shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its duties or obligations arising under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Neo4j. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any term of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement (which includes the OEM Information Form, all Order Forms entered into hereunder and the Support Services Terms) represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral, except to the extent Neo4j makes any software or other products and services available to OEM under separate written terms. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Neo4j Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of this Agreement that confers a right or remedy in favor of it. Except for OEM’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder. This Agreement may be entered into in one or more counterparts, each of which will be deemed an original, and all of which taken together shall constitute one and the same instrument.
