Neo Technology Subscription Agreement

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS NEO TECHNOLOGY SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”). BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT OR USING THE NEO4J SOFTWARE (“SOFTWARE”) AS DOWNLOADED FROM THE WEB SITE LOCATED AT WWW.NEOTECHNOLOGY.COM (THE “SITE”), WHICHEVER OCCURS FIRST, YOU (“SUBSCRIBER”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH NETWORK ENGINE FOR OBJECTS IN LUND AB (“NEO TECHNOLOGY”), 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 SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT SUBSCRIBER ACCEPTS THIS AGREEMENT.

1.     Scope of Agreement.

(a)       Software and Support Services. This Agreement sets forth the terms and conditions under which Subscriber may purchase from Neo Technology: (i) licenses to use the Software; (ii) support and maintenance services (“Support Services”); and (iii) consulting services (“Consulting Services”).

(b)       Order Forms.  The Software and services ordered by Subscriber will be specified in one or more order forms (each, an “Order Form”) which are executed by the parties pursuant to this Agreement. Each Order Form will be governed by the terms of this Agreement and the term “Agreement” herein, includes the terms of this Agreement and all Order Forms executed pursuant to this Agreement whether on or after the Effective Date. The terms on any purchase order, confirmation, or similar document submitted by Subscriber to Neo Technology will have no effect and are hereby rejected. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.

2.     Software.

(a)       License Grant.  Subject to Subscriber’s compliance with the terms and conditions of this Agreement, Neo Technology hereby grants Subscriber a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement, to: (A) use, perform, publicly display, and reproduce the Software on the permitted number of Instances (as defined below) and core to develop software applications (each, an “Application”) that Subscriber uses: (i) for Subscriber’s internal business purposes; and/or (ii) to provide Application-based products and services to third party end users (each, an “End User”) and (B) allow the applicable number of Licensed Developers to install and use the Software on their personal computers for Subscriber’s internal business purposes. Each Order Form will specify the number and types of Instances, cores and/or number of Licensed Developers that Subscriber has purchased. “Instance” means each Java™ Virtual Machine that runs the Software. Test Instances may be used for internal testing purposes and not for production use (such as, in a system test, integration test, user acceptance test, training, or performance test). Disaster Recovery Instances are Instances installed at a separate Subscriber controlled facility or at Subscriber’s third party hosting facility other than as set forth on the Order Form and exist as part of Subscriber’s business continuity and/or resumption plans, and are not active during normal operations. Licensed Developers means Subscriber employees and contractors that may use the Software for purposes of developing Applications on behalf of Subscriber. Licensed Developers may use the Software in accordance with licenses hereunder, and may additionally use multiple copies of the Software, up to a reasonable number, for their individual use, and for the sole purpose of developing Subscriber’s Applications (such as in programming and unit test, but not system test, integration test, user acceptance test, training, or performance test). The Software will be made available to Subscriber under this Agreement in object code only; no source code is provided to Subscriber under this Agreement. Without limiting any restrictions on Subscriber’s use of the Software as set forth in Section 2(d) (Restrictions) below and elsewhere in this Agreement, Subscriber is expressly prohibited from distributing any copy of the Software (whether in connection with an Application-based product or service or otherwise) to any third party, including, without limitation, any End User.

(b)       Mandatory Terms.  To the extent Subscriber provides an Application-based product or service to any End User, Subscriber shall ensure that the terms of Subscriber’s end user or other agreement with each End User are at least as protective of Neo Technology as the terms of this Agreement, including, without limitation, Sections 2(d) (Restrictions), 2(e) (Proprietary Rights), 2(f) Third Party Software, 6(a) (Feedback), 7(c) (Disclaimer of Warranties), 8 (Indemnification), and 9 (Limitation of Liability) (collectively, the “Mandatory Terms”). If Subscriber makes any claim, representation or warranty regarding the Software that is different from or in addition to those set forth in this Agreement, Subscriber shall be solely and exclusively responsible for such claim, representation or warranty and Neo Technology shall have no liability for any such claim, representation or warranty. As between Neo Technology and Subscriber, Subscriber is responsible for all acts and omissions of its End Users in connection with their use of any Application-based product or service and Subscriber will reasonably cooperate with Neo Technology in connection with any prohibited activities of any End User in connection with the Software and Subscriber will promptly notify Neo Technology if Subscriber becomes aware of any such prohibited activities.

(c)       Delivery and Acceptance.  Neo Technology shall enable Subscriber to download the Software from the Site, or shall otherwise make the Software available to Subscriber.The Software (and any future Software updates or upgrades that Neo Technology may make available to Subscriber from time-to-time and which are included in the defined term “Software”) will be deemed accepted upon Neo Technology making the Software (or the relevant update or upgrade) available to Subscriber. Notwithstanding the fact that Subscriber may already have obtained an edition of the Software from Neo Technology prior to the Effective Date for Subscriber’s use under separate software license terms such as the AGPL, GPL or any other open source license, to the extent Subscriber uses the Software pursuant to the terms of this Agreement (as evidenced by Subscriber entering into this Agreement), Subscriber’s use of the Software is solely and exclusively governed by the terms of this Agreement.

(d)       Restrictions.  Subscriber may not, and will not permit or induce any third party (including, without limitation, any End User) to: (i) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software; (ii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Software; (iii) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer the Software or any copy thereof; (iv) use the Software in commercial timesharing, rental or other sharing arrangements; (v) remove any proprietary notices from the Software or any related documentation or other materials furnished or made available hereunder; or (vi) run or use any edition of the Neo4j software licensed under the AGPL, GPL or any other open source license (including, without limitation, the Community, Advanced or Enterprise editions) in the same project or system in which Subscriber uses or has used the Software licensed hereunder, during the term and for thirty-six (36) months thereafter. In addition, Subscriber agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to Subscriber’s use of the Software. Subscriber shall not permit or induce any End User to download or copy the Software. Subscriber acknowledges and agrees that the Software includes functionality that reports the number of Instances being used and permits Neo Technology the ability to provide Support Services and monitor certain usage of the Software (“Critical Control Software”) which is fundamental to the business of Neo Technology.

(e)       Proprietary Rights.  Neo Technology 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. Subscriber shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with Neo Technology’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 (“Neo Technology Marks”), are all owned by Neo Technology or its licensors; Subscriber is expressly prohibited from using the Neo Technology Marks.Title to the Software shall not pass from Neo Technology to Subscriber, and the Software and all copies thereof shall at all times remain the sole and exclusive property of Neo Technology. Subscriber’s embedding or integration of the Software into an Application is not considered a derivative work. There are no implied rights or licenses in this Agreement. All rights are expressly reserved by Neo Technology.

(f)        Third Party Software.  Neo Technology 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. Subscriber’s use of the Third Party Software is subject to the applicable third party license terms which can be viewed at www.neotechnology.com/thirdpartylicenses, and such Third Party Software is not licensed to Subscriber under the terms of this Agreement. If Subscriber does not agree to abide by the applicable license terms for the Third Party Software, then Subscriber may not access or use the Software or the Third Party Software. Subscriber is solely and exclusively responsible for determining if Subscriber is permitted to use the Third Party Software in connection with any Application and Subscriber should address any questions in this regard directly to the relevant Third Party Software licensor. Neo Technology makes no representation or warranty that Subscriber is entitled to use the Third Party Software in connection with any Application.

(g)       Inspection Right.  During the term of this Agreement and for one (1) year thereafter, Neo Technology or its designated agent may inspect Subscriber’s facilities and records to verify Subscriber’s compliance with the terms of this Agreement. Any such inspection will take place only during Subscriber’s normal business hours and upon not less than ten (10) business days’ prior written notice from Neo Technology. Subscriber shall reasonably cooperate with such audit and shall make such personnel and records available as Neo Technology may reasonably request. Neo Technology will give Subscriber written notice of any non-compliance, including any use of the Software or services beyond that authorized under this Agreement and without limiting Neo Technology’s remedies arising from such unauthorized use, Subscriber shall promptly: (i) cease such unauthorized use; (ii) pay Neo Technology any additional fees due to the extent Subscriber’s use of the Software has exceeded the number of Instances purchased by Subscriber; and (iii) reimburse Neo Technology’s reasonable, documented costs incurred in conducting such inspection.

3.     Services.  Neo Technology will provide the Consulting Services set forth on an Order Form pursuant to the terms of Exhibit A (“Consulting Services Terms”). By executing an Order Form for the Software and paying the applicable Software subscription fees, Subscriber is entitled to receive Support Services at the Support Services level applicable to the specific Software product licensed to Subscriber. Neo Technology will provide Support Services during the applicable Software subscription term set forth in each Order Form in accordance with Neo Technology’s then-current Support Services terms, as further specified on the Site at http://www.neotechnology.com/support-terms/ (the “Support Site”), which terms form an integral part of this Agreement and are incorporated herein by reference (“Support Services Terms”). Only four (4) named support contacts may contact Neo Technology for Support Services provided that Subscriber may add additional contacts subject to an additional fee. Neo Technology may add to, change or remove any part, term or condition of the Support Services Terms at any time without prior notice to Subscriber; provided however, that any such changes which occur during the then-current Software subscription term (as specified in the applicable Order Form) which materially diminish the benefit of the Support Services, will not take effect for Subscriber until the start of the next Software subscription term. By continuing to use the Support Services, Subscriber is indicating its acceptance of such changes. It is Subscriber’s responsibility to check the Support Services Terms periodically for changes, however, Neo Technology will provide written notice to Subscriber of any significant changes to the Support Services Terms, including through notices posted on the Support Site or sent to Subscriber’s e-mail address.

4.     Fees & Payment Terms.

(a)       Software Subscription fees. The subscription fees payable by Subscriber for the Software license and services, and the applicable Software license period, will be set forth in each Order Form. Fees shall be paid in advance on a monthly, quarterly or annual basis as set forth in the applicable Order Form.

(b)       Services Fees.  The fees payable by Subscriber for the Support Services are included in the Software subscription fees. The level of Support Services provided to Subscriber as set forth in the Support Services Terms, will be determined by the specific Software product licensed to Subscriber as set forth in each Order Form.   The fees payable by Subscriber for the Consulting Services are set forth on each Order Form and shall be paid on the dates set forth in the applicable Order Form.

(c)       Payment Terms.  All payments under this Agreement shall be made within thirty (30) days of the invoice date in currently available funds and payments may be made by check, wire transfer, or by such other means as Neo Technology may specify from time-to-time. Checks should be made payable to ‘Network Engine for Objects in Lund AB’ and mailed to Neo Technology at Network Engine for Objects in Lund AB at Anckargripsgatan 3, 211 19 Malmö, Sweden. Unless otherwise expressly agreed by Neo Technology and specified in the applicable Order Form, all fees are payable in the currency of EUROS. All fees specifically exclude (and Subscriber is responsible for) any and all applicable sales, use and other taxes, other than taxes based on Neo Technology’s income. If all or any part of any payment owed to Neo Technology 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 Neo Technology of the amounts otherwise payable under this Agreement. 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. Neo Technology will not issue any invoices for the fees due hereunder unless expressly requested by Subscriber; provided however, that all fees are automatically due as set forth in this Section 4 irrespective of the date of issue of any invoice.

(d)       Changes to Fees.  Neo Technology may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Subscriber until the start of the next Software subscription term (as specified in the applicable Order Form). Neo Technology will provide written notice to Subscriber of any changes to the fees that affect the Software and Support Services Subscriber has purchased, including through notices posted on the Site or sent to Subscriber’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 for as long as any Software, Support Services or Consulting Services are being provided to Subscriber under this Agreement. The term of the Software license (and subject to Section 4(d), the corresponding periodic Software subscription fees) set forth in an Order Form shall automatically renew for successive periods (e.g., monthly, quarterly, annually, etc.) unless either party notifies the other party in writing, not less than thirty (30) calendar days (in the case of monthly Software license terms), or ninety (90) calendar days (in the case of quarterly or annual Software license terms), before the expiration of the then-current Software subscription term, that such party does not wish to renew the Software license for an additional Software subscription term.

(b)       Termination.  Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.

(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 Subscriber shall cease to use the Applications and shall cease making any Application-based products or services available to End Users; (ii) Neo Technology’s obligations to perform the Support Services and Consulting Services shall immediately terminate; (iii) Subscriber shall pay to Neo Technology 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) (Inspection Right), 4 (Fees & Payment Terms), 5(c) (Effects of Termination), 6(a) (“Confidentiality”), 6(b) (Feedback), 7(c) (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 12 (Governing Law & Jurisdiction), 13 (Notices), and 14 (General Provisions).

6.  Confidentiality, Feedback & Publicity.

(a)       Confidentiality.   “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Software and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Subscriber and Neo Technology will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.

(b)       Feedback.  To the extent Subscriber sends or transmits any communications, comments, questions, suggestions, or related materials to Neo Technology, whether by letter, e-mail, telephone, or otherwise (“Feedback”), whether originating from Subscriber or an End User, suggesting or recommending changes to the Software or Support Services, including, without limitation, new features or functionality relating thereto, Subscriber hereby grants Neo Technology a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Subscriber’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. Subscriber agrees and understands that Neo Technology is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Subscriber has no right to compel such use, display, reproduction, or distribution.

(c)       Publicity.  During the term of this Agreement, Subscriber hereby agrees that Neo Technology shall have the right, but not the obligation, to include Subscriber’s name and logo as a customer who uses the Software, Support Services and/or Consulting Services on the Site and in other marketing materials promoting the Software, Support Services and/or Consulting Services.

7.     Warranties & Disclaimer of Warranties.

(a)       General Representations and Warranties.  Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) it has complied, and will in the future comply, with all applicable laws, rules and regulations in connection with the execution, delivery and performance of this Agreement.

(b)       Limited Software Warranty.  Neo Technology represents and warrants to Subscriber only (and not to any End User) that the Software when used for its intended purpose and in accordance with Neo Technology’s instructions, will materially conform to Neo Technology’s published specifications for a period of ninety (90) calendar days from the date Subscriber is first permitted to access and use the Software under Section 2(c) (Delivery and Acceptance) above. Subscriber’s sole and exclusive remedy, and Neo Technology’s sole and exclusive liability for any breach of this warranty will be, at Neo Technology’s sole discretion, to either fix the Software to remedy the defect or refund the applicable Software subscription fees paid by Subscriber for the Software, in each case on condition that Subscriber promptly notifies Neo Technology 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 unintended purpose, 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 OR ON EXHIBIT A: (I) THE SOFTWARE AND SERVICES ARE PROVIDED TO SUBSCRIBER ON AN “AS IS” BASIS, with any and all faults, and without any warranty of any kind; AND (II) Neo Technology 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. Neo Technology does not warrant that the SOFTWARE OR SERVICES will meet SUBSCRIBER’S or its end users’ requirements, or that the operation of the SOFTWARE will be uninterrupted or error-free, or that defects in the SOFTWARE OR SERVICES will be corrected. Subscriber expressly acknowledges and agrees that the use of the SOFTWARE AND SERVICES and all results of such use is solely at Subscriber’s and its end users’ own risk. no oral or written information or advice given by Neo Technology 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 SUBSCRIBER. In such event, Neo Technology’s warranties and conditions with respect to the Software AND SERVICES will be limited to the greatest extent permitted by applicable law in such jurisdiction.

8.     Indemnification.

(a)       Indemnification by Subscriber.  Subscriber hereby agrees to indemnify, defend and hold harmless Neo Technology 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 “Neo Technology Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any Neo Technology Party in connection with any actual or alleged claim arising out of, or relating to: (i) Subscriber’s breach of this Agreement, any license applicable to the Third Party Software, or any applicable law, rule or regulation; (ii) Subscriber’s use of the Software and Support Services, including, without limitation, Subscriber’s development and use of any Application, Subscriber’s sale of any Application-based product or service to End Users, and End Users’ use of any Application-based product or service (except to the extent Neo Technology is responsible for the event giving rise to Subscriber’s liability under this Section 8(a)); (iii) any breach by an End User of the Mandatory Terms; and (iv) Subscriber’s gross negligence, fraudulent misrepresentation or willful misconduct.

(b)       Indemnification by Neo Technology.  Neo Technology hereby agrees to indemnify, defend and hold harmless Subscriber, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, a “Subscriber Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any Subscriber Party in connection with any actual or alleged claim made by a third party arising out of, or relating to: (i) Subscriber’s use of the Software and Support Services as authorized herein infringing or misappropriating a third party’s copyright, trade secret or patent issued as of the Effective Date (except to the extent Subscriber is responsible for the event giving rise to Neo Technology’s liability under this Section 8(b)); and (ii) Neo Technology’s gross negligence, fraudulent misrepresentation or willful misconduct. Neo Technology shall have no indemnity obligation to the extent that the infringement arises out of: (a) use of other than the then-current, unaltered version of the Software, unless the infringing portion is also in the then-current, unaltered release; (b) any Third Party Software; (c) based on Subscriber’s use of the Software other than in accordance with this Agreement or the applicable documentation; (d) Subscriber’s combination of the Software with software or hardware not provided by Neo Technology; or (e) Subscriber’s modifications of the Software not approved in writing by Neo Technology. If Subscriber’s use of the Software is enjoined or Neo Technology reasonably believes Subscriber’ s use of the Software may be enjoined, Neo Technology may elect to obtain a license for Subscriber to continue using the Software or modify the Software so that it no longer infringes. The foregoing shall be Subscriber’s sole and exclusive remedy and Neo Technology’s sole and exclusive obligation with respect to any claim of intellectual property infringement.

(c)       Procedure.  The indemnifying party shall have the control of the defense and related settlement of any claims. The indemnified party shall provide the indemnifying party with prompt written notice of the claim. Counsel that the indemnifying party selects for the defense or settlement of a claim must be consented to by the indemnified party prior to counsel being engaged to represent the indemnifying party on behalf of the indemnified party (such consent not to be unreasonably withheld or delayed). The indemnified party and its counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the indemnifying party in the defense or settlement of any claim. The indemnifying party shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any indemnified party without the prior written consent of each relevant indemnified party (such consent not to be unreasonably withheld or delayed).

9.     Limitation of Liability.

(a)       Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, SHALL ANY NEO TECHNOLOGY PARTY BE LIABLE TO SUBSCRIBER, ANY END USER OR ANY THIRD PARTY 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 SERVICES, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF A NEO TECHNOLOGY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b)       Limitation of Damages. WITHOUT LIMITING THE FOREGOING, In no event shall THE Neo Technology PARTIES’ total CUMULATIVE liability to Subscriber, ANY END USER OR ANY THIRD PARTY for all damages, losses and causes of action (whether in contract, tort, including negligence AND STRICT LIABILITY, or FOR INDEMNITY OR otherwise) exceed THE TOTAL AMOUNT OF FEES PAID BY SUBSCRIBER TO Neo TECHNOLOGY DURING the twelve (12) MONTH PERIOD IMMEDIATELY PRECEDING the EVENT GIVING RISE TO THE Neo Technology PARTIES’ LIABILITY.

(c)       Liability for Third Party Software.  Notwithstanding Section 2(F) (Third Party Software) above, if any liability attaches to ANY neo technology 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.

(e)       Jurisdictional Issues. 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 SUBSCRIBER. In such event, the liability of THE Neo Technology PartIES for such damages with respect to the Software AND services will be limited to the greatest extent permitted by applicable law in such jurisdiction.

(f)        Allocation of Risk. 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 Subscriber 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.  Subscriber 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 origin, including the Software. Subscriber agrees that it will not export or re-export the Software without the appropriate United States or foreign government licenses or permits.

12.     Governing Law.  This Agreement will be construed and enforced in all respects in accordance with the laws of the United Kingdom and England, without reference to its choice of law rules. Except as set forth below in this Section 12, 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, Neo Technology 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 Subscriber 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. Subscriber agrees that any breach of the license restrictions or other infringement or misappropriation of the intellectual property rights of Neo Technology or its licensors will result in immediate and irreparable damage to Neo Technology 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 services provided hereunder. Furthermore, this Agreement (including without limitation, the Software and 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.

13.   Notices.  All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Notices shall be sent to each party at their respective addresses as set forth in the Subscriber Information Form, as such contact information may be updated by each party from time-to-time pursuant to this Section 13. Without limiting the foregoing, whenever Subscriber visits the Site or sends e-mails to Neo Technology, Subscriber is communicating with Neo Technology electronically. For that reason, Subscriber also consents to receive communications from Neo Technology electronically, including by e-mail and notices posted on the Site. Subscriber agrees that all agreements, notices, disclosures, and other communications that Neo Technology provides to Subscriber electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.

14.   General Provisions.  Subscriber 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 Neo Technology. 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. If Subscriber is acquired by a third party and that third party continues to operate Subscriber as a separate subsidiary, Subscriber will use best efforts to obtain written permission for Neo Technology to use Subscriber’s parent entity’s name and logo pursuant to the terms of Section 6(c).   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 all Order Forms entered into hereunder and the Support Services Terms and Consulting 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 Neo Technology makes any software or other products and services available to Subscriber 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 Neo Technology 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 Subscriber’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.

 

Exhibit A

Consulting Services Terms

If Subscriber has purchased Consulting Services for pursuant to an Order Form, the following terms shall apply to the Consulting Services.

A. SERVICES

A.1 Services. Neo Technology or its third party service provider will provide to Subscriber Consulting Services as are described on such work statements which are executed from time to time by both parties pursuant to this Agreement (the “Statement of Work(s)”). Each Statement of Work shall expressly reference this Agreement. Each Statement of Work will contain a description of the tasks to be performed and the deliverables to be produced by Neo Technology. The applicable Statement of Work may include such additional terms and conditions as the parties may wish to include. In the event of a conflict between this Agreement or an Order Form and a Statement of Work, the terms of such Statement of Work shall control with respect to the Consulting Services provided pursuant to such Statement of Work.

A.2 Deliverables. During the course of providing the Consulting Services, Neo Technology may design, develop for or deliver to Subscriber computer software, documentation and other tangible deliverables, which shall hereinafter be referred to collectively as “Deliverables”. Deliverables shall be deemed accepted upon receipt.

A3. Cooperation. Subscriber will reasonably cooperate and provide resources as set forth on a Statement of Work or as otherwise shall be necessary for Neo Technology, or its third party service provider, to perform the Consulting Services. Except as specified on a mutually agreed upon Statement of Work, all Consulting Services shall be performed at Subscriber’s facilities, and Subscriber shall provide electricity, reasonable accessories, storage, and full and unrestricted access to Subscriber’s equipment and communication facilities and all other normal and customary facilities. Neo Technology will not be responsible for any delays in the Consulting Services which are caused by the actions or omissions of Subscriber.

B. PROPRIETARY RIGHTS

Unless otherwise specified in the Statement of Work, all Deliverables and intellectual property rights embodied therein (except for Subscriber Confidential Information therein) developed or prepared for Subscriber by Neo Technology under such Statement of Work shall remain the exclusive property of Neo Technology (provided however, that Neo Technology covenants not to reuse or distribute in any manner any portions of the Deliverables that incorporate Subscriber’s Confidential Information). Unless otherwise specified in the Statement of Work and except with respect to certain Deliverables that are Third Party Software (in which case, such Deliverables are subject to the terms of Section 2(f) of the Agreement), Neo Technology grants Subscriber a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement to: (i) use the Deliverables for Subscriber’s internal business purposes and (ii) use any Deliverables that constitute an upgrade, update, improvement or modification to the Software on the same license terms as Section 2(a) and subject to Sections 2(d) and 2(e). Subscriber and its suppliers own and maintain any and all right, title and interest in and to proprietary Subscriber-provided materials.

C. WARRANTIES

Neo Technology represents and warrants that the Consulting Services provided hereunder shall be provided in a professional and workmanlike manner and the Deliverables shall substantially conform to the Statement of Work. In the event of a breach of this warranty, Neo Technology shall use commercially reasonable efforts to re-perform the applicable Consulting Services or re-deliver the applicable Deliverables within a reasonable time provided that Subscriber notifies Neo Technology within thirty (30) days following the date of completion of the Consulting Services or delivery of the Deliverables, as applicable. The foregoing shall be Subscriber’s sole and exclusive remedy, and Neo Technology’s sole and exclusive obligation, for a breach of the warranty set forth in this Section C.

D. CHANGES

Subscriber or Neo Technology may, prior to the completion of the Consulting Services, request in writing changes to the Consulting Services of a Statement of Work. Changes may result in increased or decreased price and delivery time and Subscriber and Neo Technology must agree to such changes in writing (via a new Statement of Work or an amendment to an existing Statement of Work) before they become effective.

E. TERM

The term of each Statement of Work will begin upon the effective date specified therein and shall continue until the earlier of (i) termination of the Statement of Work as provided herein, or (ii) when all Consulting Services under an applicable Statement of Work have been provided. Either party may terminate a Statement of Work or Consulting Services with or without cause at any time by giving the other party thirty (30) days prior written notice of termination. In no event shall Neo Technology be liable to Subscriber or any third party as a result of termination of the Consulting Services or a Statement of Work hereunder for any costs or damages, including but not limited to costs associated with the loss of prospective profits, good will, or on account of expenditures, leases or commitments in connection with the business of Subscriber, or for any other reason whatsoever following from such termination.