CONFIDENTIAL SINGERLINKS CONSULTING LLC DBA NODEERA SOFTWARE
MASTER LICENSE AGREEMENT
This Master License Agreement (“Agreement”) is between SingerLinks Consulting, LLC, dba NodeEra Software (“NodeEra”), and the persons who are purchasing the software tools and who are using the software tools (“Purchaser/User”).
Scope of License
1.1 NodeEra shall provide Purchaser/User with access to software tools for use with the Neo4J graph database system (“NodeEra Software Tools”) described in the schedule that forms a part of this agreement (“Schedule A”).
1.2 Each Schedule shall be governed by the terms and conditions of this Agreement, and in the event of conflicting provisions, the provisions of the Schedule shall prevail.
1.3 Subject to Section 3.4, NodeEra shall have the right to use third parties (the “Consultants”) in providing the NodeEra Software Tools and, for purposes of this Agreement, all references to NodeEra or its employees shall be deemed to include such Consultants.
2 Price & Payment
2.1 NodeEra shall provide the NodeEra Software Tools to Purchaser/User at the current License Fee pricing set forth on the Products and Checkout webpages of the NodeEra website.
2.2 For online purchases through the NodeEra website, you must at least be the age of eighteen (18). If you are under this age limit, you must have a parent or guardian make the purchase on your behalf. NodeEra’s payment processor will charge your credit card after you have entered your payment information through the Checkout webpage.
2.3 Purchaser/User may request an invoice from NodeEra for a purchase order payment in which case NodeEra may set a term for the payment.
2.4 Unless invoiced as a separate line item, the fees to be paid hereunder do not include any value-added tax, business tax or any other indirect and direct taxes or levies resulting from this Agreement, excluding taxes related to NodeEra’ income and assets. Purchaser/User is responsible for paying any such taxes to the appropriate tax authorities or for reimbursing NodeEra when submitted to Purchaser/User as a separate line item on an invoice.
3 Confidential Information & Proprietary Rights
3.1 “Confidential Information” means (a) all NodeEra Software Tools, including source code, executable code, and the operation of the software, and all other NodeEra information that is either (i) marked with a statement of confidentiality or other proprietary notice at the time of disclosure or (ii) otherwise identified as confidential upon disclosure and designated as confidential in a writing provided to recipient within thirty (30) days of the initial disclosure, and (b) all memoranda, summaries, notes, analyses, compilations, studies or other documents prepared by the receiving party which contain, reflect or are derived from such Confidential Information. When disclosed in printed or electronic form and regardless of any markings, it shall be presumed that Confidential Information includes business plans, financial results and statements, market projections, business operations, material requirements, contracts including the terms and conditions of this Agreement, manufacturing processes and assemblies, trade secrets and other inventions, vendor names and contacts and customer names and contacts.
3.2 Neither party shall have any obligation of confidentiality under this Agreement for information that: (i) is within or enters the public domain through no fault of the receiving party; (ii) is rightfully obtained from a third party that does not have any obligation of confidentiality thereon; or (iii) is already known by the receiving party at the time of receipt and the information is not subject to another obligation to maintain its confidentiality. Neither party shall be liable for the disclosure of Confidential Information that is required by a court or a government agency, provided that notice is promptly given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order or otherwise restrict the required disclosure. The parties shall cooperate fully in seeking such protective order and in restricting the required disclosure.
3.3 Purchaser/User shall not, in whole or in part, sell, or disclose Confidential Information to any third party and shall not copy, reproduce or distribute Confidential Information except as expressly permitted in this Agreement. Purchaser/User shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of Confidential Information.
3.4 Purchaser/User shall protect Confidential Information it receives from NodeEra. Without limiting the foregoing, Purchaser/User shall restrict access to NodeEra’s Confidential Information to those employees or subcontractors who (i) require access in the course of their assigned duties and responsibilities and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth herein.
3.5 Purchaser/User acknowledges that unauthorized disclosure or use of Confidential Information would cause NodeEra imminent irreparable injury and any such unauthorized disclosure or reasonable threat thereof entitles NodeEra to injunctive relief in the event that Purchaser/User does not fulfill its obligations under this Section in addition to any other remedies available at law or in equity.
3.6 NodeEra retains all intellectual property rights in the processes, algorithms, software and other proprietary tools used in the use of the NodeEra Software Tools, particularly including the copyrights therein. Purchaser/User may only use the NodeEra Software Tools for the purposes and applications expressly granted in Schedule A. Purchaser/User is prohibited from reverse engineering, disassembling, decompiling, distributing, coding, transferring, reproducing, publicly performing or displaying or granting third parties with access to the NodeEra Software Tools.
3.7 Unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, enhancement requests, corrections, and other contributions related to the NodeEra Software Tools provided to NodeEra by Purchaser/User (“Free Suggestion”) are freely offered to NodeEra without any claim to ownership or confidentiality by Purchaser/User or any obligation for implementation by NodeEra. In the event that NodeEra implements a Free Suggestion, such implementation shall be owned by NodeEra and nothing in this Agreement or Schedule A shall preclude NodeEra from implementing and using the know-how, techniques, or procedures acquired by NodeEra in providing the NodeEra Software Tools to the Purchaser/User.
4.1 NodeEra warrants that it has the right to enter into this Agreement and that it shall make the NodeEra Software Tools available to the Purchaser/User in a workmanlike and professional manner.
4.2 EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, NODEERA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
5 Limitation of Liability
5.1 IN NO EVENT SHALL NODEERA OR ITS CONSULTANTS BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF FEES PAID BY PURCHASER/USER FOR THE NODEERA SOFTWARE TOOLS DURING THE THREE (3) MONTH PERIOD PRIOR TO THE CLAIM WHICH GAVE RISE TO SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
5.2 IN NO EVENT SHALL NODEERA OR ITS CONSULTANTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOOD WILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6 Term & Termination
6.1 This Agreement shall remain in effect until terminated by either party as provided herein, and each Schedule shall remain in effect until it has expired on its own terms.
6.2 This Agreement or any Schedule hereunder may be terminated prior to expiration or completion in accordance with the following:
6.2.1 By NodeEra if Purchaser/User (i) fails to make any payments due hereunder within fifteen (15) days after NodeEra delivers notice of default to Purchaser/User; or (ii) files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
6.2.2 By Purchaser/User after having provided NodeEra with at least thirty (30) days notice prior to an anticipated early termination date. In the event of such early termination, Purchaser/User forfeits any advanced payments made for NodeEra Software Tools during the remaining term.
6.2.3 By either party in the event the other has failed to perform any obligation required to be performed under this Agreement or a Schedule and such failure is not corrected within thirty (30) days from receipt of written notice from the other party advising of such failure.
6.3 Upon termination or expiration of this Agreement or any Schedule, Purchaser/User shall stop using the NodeEra Software Tools and delete or otherwise destroy any other NodeEra Confidential Information. As a subscription service, the NodeEra Software Tools are designed to expire and stop operating when the Subscription Period ends, and Purchaser/User must pay for another License Fee for each additional subscription-period. Circumventing the expiration logic in the NodeEra Software Tools or otherwise preventing the NodeEra Software Tools from ceasing to operate at the end of the Subscription Period without paying for a new subscription period is a breach of this Agreement that can subject the Purchaser/User to civil liability and also violates the Digital Millennium Copyright Act (DMCA) that can result in criminal penalties.
7 General Terms and Conditions
7.1 Independent Contractor. NodeEra is an independent contractor and nothing in this Agreement shall be deemed to make NodeEra an agent, employee, partner or joint venturer of Purchaser/User.
7.2 Assignment. This Agreement cannot be assigned by either party without the prior consent of the other party.
7.3 Survival. The provisions set forth in sections 1.2, 2, 3, 4.2, 5, 6.3 and 7 of this Agreement shall survive termination or expiration of this Agreement and any Schedule hereunder.
7.4 Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery. When a notice is sent electronically and a confirmation notice is also sent in writing within forty-eight (48) hours of the electronic notice, such notice shall be deemed to have been delivered on the date that the electronic notice is sent. Notices to Purchaser/User shall be sent to the Executive Contact specified on Attachment A or to such other person and address as Purchaser/User may designate in writing. Notices to NodeEra shall be sent to the attention of the Consulting Contracts Manager at the address specified on the first page of this Agreement, and electronic notices to NodeEra shall be sent to firstname.lastname@example.org.
7.5 Account Security. Purchaser/User is responsible for maintaining the confidentiality and security of your account through the NodeEra website, particularly including your User ID and password. In the event that Purchaser/User becomes aware of any unauthorized use of the NodeEra account or any other account using the same User ID and password combination, Purchaser/User shall notify NodeEra and create a new password.
7.6 Force Majeure. NodeEra shall not be liable to Purchaser/User for any delay or failure of NodeEra to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of NodeEra. Such causes shall include, but are not limited to, acts of God, floods, fires, riots, civil unrest, loss of electricity, internet service, or other utilities, or delays by Purchaser/User in providing required resources or support or performing any other requirements hereunder.
7.7 Entire Agreement. This Agreement and Schedules constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals, prior discussions and writings between the parties with respect thereto. The terms and conditions of any purchase order or other instrument issued by Purchaser/User in connection with this Agreement which is in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on NodeEra.
7.8 Modifications. The parties agree that this Agreement and the accompanying Schedule A cannot be altered, amended or modified, except in writing which is signed by an authorized representative of both parties. NodeEra and Purchaser/User may execute written supplements to Schedule A that clarify, modify, or replace Schedule A’s terms. The supplements shall only apply to those schedules specifically identified in the supplements. In the event of conflicting provisions between multiple supplements that pertain to the same schedule, the provisions of the latest supplement shall prevail.
7.9 Headings. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.
7.10 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver thereof.
7.11 Reservation of Rights. NodeEra reserves all rights not specifically granted herein.
7.12 Publicity. The parties may individually and/or jointly announce the existence of this Agreement, but shall not disclose Confidential Information such as the terms and conditions of this Agreement. NodeEra may use Purchaser/User’s name and logo in any press release or marketing material that merely states that Purchaser/User is a customer of NodeEra, either on an individual basis or as part of a list of some or all of NodeEra’ other customers. Furthermore, NodeEra may display Purchaser/User’s name and logo on NodeEra's web site(s) and publicly available customer lists.
7.13 Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
7.14 Choice of Law & Dispute Resolution. This agreement shall be governed and interpreted by the laws of the state of Missouri without regard to its conflicts of law provisions. The parties shall first try in good faith to resolve any dispute or other controversy through mediation rather than litigation, and in the event that the parties cannot resolve the controversy through mediation, the parties shall enter into arbitration. Other than a breach of confidentiality and imminent harm alleged by NodeEra in seeking a temporary restraining order and/or injunction, it is a breach of this Agreement to enter arbitration or litigation without prior mediation, and specific performance for such breach shall be mandatory mediation that is available as a temporary restraining order or under summary judgment action.
7.15 Execution in Counterparts. This Agreement may be executed in counterparts, each of which when so executed and delivered, shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument.
SCHEDULE A - SINGLE PURCHASER/USER
A. "Documentation" shall mean all manuals, user documentation, web pages, videos, and other related materials pertaining to the NodeEra Software Tools which are furnished to User by NodeEra Software in connection with the Software.
B. "License Fee" shall mean the amount of the annual subscription as listed on the www.nodeera.com website at the time of initial license purchase or annual license renewal.
C. "NodeEra Software Tools" are provided on an “as is” basis for use with the Neo4J graph database system.
D. The “Effective Date” of this agreement is the date when the license key was issued by NodeEra Software to the User.
2. INDIVIDUAL PURCHASER/USER LICENSE
NodeEra Software hereby grants to User a non-exclusive right and license to use the Local Edition/Pro Edition of the NodeEra Software Tools for use on a single desktop or laptop computer for a period of one (1) year from the Effective Date of this Agreement (the “Subscription Period”). The NodeEra Software Tools shall be used only on such primary computer systems when they are operative. In the event that a primary computer system is inoperative, the Software may temporarily be used on a backup computer system only until such time as the primary computer system regains its operative capability.
3. SYSTEM REQUIREMENTS
NodeEra makes its NodeEra Software Tools available to Purchaser/User in accordance with basic system requirements as provided on the NodeEra website, and these basic system requirements can change with new software versions.
Except as specifically set forth herein, no Software or Documentation which is provided by SingerLinks pursuant to this Agreement in human or machine readable form shall be copied in whole or in part by User without SingerLinks’ prior written agreement. Additional copies of printed materials may be obtained from User at the charges then in effect.
CONFIDENTIAL SINGERLINKS CONSULTING LLC DBA NODEERA SOFTWARE