GRAPHGRID FREEMIUM AGREEMENT
PLEASE READ THIS FREEMIUM AGREEMENT BEFORE USING THE GRAPHGRID SOFTWARE. BY CLICKING ON THE CHECKBOX OR DOWNLOAD BUTTON THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY USING THE GRAPHGRID SOFTWARE, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT DOWNLOAD OR USE THE GRAPHGRID SOFTWARE.

This Freemium Agreement (“Agreement”) is entered into by and between GraphGrid, Inc. (“GraphGrid”) and the downloader or user of the GraphGrid Software that accepts the terms of this Agreement (“Customer”). The effective date of this Agreement (“Effective Date”) is the date that Customer downloads or commences use of the GraphGrid Software.

1. License.

1.1 License Terms.

1.1.1 Freemium License. Subject to the terms of this Agreement, GraphGrid grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the applicable Term to install and use GraphGrid proprietary software (“GraphGrid Software”) solely for Customer’s internal business operations. This freemium license limits the total resource utilization of the GraphGrid Software deployment, regardless of how many nodes or instances, to 8 CPU cores, 32 GiB of memory, and 1 GPU. An example is provided for the avoidance of doubt: a three-node clustered deployment of the GraphGrid Software is limited to a total of 8 CPU cores, 32 GiB of memory, and 1 GPU, not 24 CPU cores, 96 GiB of memory, and 3 GPU. Customer may permit its third-party service providers to install and use the GraphGrid Software to provide outsourced services to Customer, and Customer will be solely responsible for such service provider’s compliance with this Agreement.

1.1.2 Subscription. The GraphGrid Software is also available under a subscription license without the resource-utilization limitations of the freemium license. Use of the GraphGrid Software under the subscription license is covered by a separate agreement (GraphGrid  Subscription Agreement), rather than this Agreement. For the avoidance of doubt, should Customer upgrade from the freemium license to the subscription license, Customer’s use of the GraphGrid Software pre-upgrade will be governed by this Agreement, and Customer’s use of the GraphGrid Software post-upgrade will be governed by the GraphGrid Subscription Agreement.

1.1.3 GraphGrid Cloud. GraphGrid also deploys its product as a cloud service, called GraphGrid Cloud. This Agreement does not cover GraphGrid Cloud, which is covered by a separate agreement (GraphGrid Cloud Agreement).

1.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) use the GraphGrid Software for third-party training, software-as-a-service, time-sharing or service bureau use or (b) disassemble, decompile or reverse engineer any portions of the GraphGrid Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such GraphGrid Software (or the underlying ideas, algorithms, structure or organization of the object code in the GraphGrid Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer the GraphGrid Software, Customer shall first provide GraphGrid with written notice thereof.

1.3 Copies. Customer is not permitted to make copies of the GraphGrid Software, other than as required for installation.

1.4 Ownership. Customer acknowledges that GraphGrid retains all proprietary rights, title and interest, including all intellectual property rights, in and to the GraphGrid Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest in GraphGrid. Customer acknowledges that the licenses granted in Section 1.1.1 do not include the right to prepare any Modifications of the GraphGrid Software.

1.5 GraphGrid Audit Rights. GraphGrid reserves the right, upon prior notice to Customer, to audit usage of the GraphGrid Software at Customer’s premises (and at the premises of or via virtual access to Customer’s hosting providers) during normal business hours to verify Customer’s compliance with the terms of this Agreement.

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

1.7 Delivery of Materials. The GraphGrid Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer.

1.8 Support Services. The GraphGrid Software is provided as is, with no support, maintenance, training, advisory, or other services.

GENERAL TERMS

2. Confidentiality.

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

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

3. Disclaimer of All Warranties. GRAPHGRID MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE GRAPHGRID SOFTWARE. GRAPHGRID SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE GRAPHGRID SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

4. Limitation of Liability. GRAPHGRID WILL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES, WHETHER DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

5. Term and Termination.

5.1 Term. This Agreement and the licenses granted hereunder shall be effective as of the Effective Date and will continue perpetually until terminated as provided in this Section 5 (“Term”).

5.2 Termination. GraphGrid shall have the right to terminate this Agreement and the license granted herein at any time and for any reason. Customer shall have the right to terminate this Agreement at any time and for any reason, but must first cease using, and uninstall, the GraphGrid Software and delete any copies thereof.

5.3 Effect of Termination. The rights and obligations of GraphGrid and Customer in Sections 1.4 (Ownership), 1.5 (Audits), 1.6 (Reservation of Rights), 2 (Confidentiality), 3 (Disclaimer of Warranties), 4 (Limitation of Liability), and 6 (Miscellaneous) shall survive termination of this Agreement.

6. Miscellaneous.

6.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without GraphGrid’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. GraphGrid shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

6.2 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. GraphGrid has the right to modify or amend this Agreement, and Customer’s continued use of the GraphGrid Software constitutes agreement to the modification. No waiver of any of GraphGrid’s rights under this Agreement shall be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

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

6.4 User and Performance Data. GraphGrid may from time to time use and process data about Customer’s use of the GraphGrid Software and Third Party Software for the purposes of creating statistics and analytics data and monitoring compliance with the Agreement. GraphGrid may use such data for its own business purposes, including to maintain and improve the GraphGrid Software, Third Party Software and other services and to monitor and analyze its activities in connection with the performance of such services. GraphGrid will use user data in accordance with GraphGrid’s Privacy Statement located at https://graphgrid.com/privacy subject, as applicable, to the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time), which are incorporated by reference in, and form an integral part of, this Agreement.

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

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

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

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

6.9 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. GraphGrid may also provide permitted or required notices by posting them on its website (www.graphgrid.com) or by emailing them to the email address of Customer on file with GraphGrid.

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

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