Stardog Cloud Enterprise Subscription Agreement
CLOUD SUBSCRIPTION AGREEMENT
This Cloud Subscription Agreement (“Agreement”), is entered into on ____, 20 (“Effective Date”), between Stardog Union, a Delaware corporation with offices located at 2101 Wilson Blvd, Suite 800, Arlington, VA 22201 (“Stardog”) and ____, a ____ with offices located at ____ (“Customer”).
1. ACCESS; ORDER FORMS.
a. Access. Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the fees (“Fees”) set forth in the applicable order form issued by Stardog, (“Order Form”), Stardog hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable, right and license, to access and use, solely for its internal business purposes, (i) the Stardog product provided to Customer on a hosted basis, as specified in the Order Form (the “Service”), and (ii) the user documentation provided with the Service (“Documentation), for the term set forth in the applicable Order Form (“Subscription Term”). Use of the Service is subject to any additional limitations set forth in the Order Form. During the Subscription Term, Stardog will support the Service in accordance with the Stardog’s Support and Service Level Agreement attached as Exhibit A.
b. Upgrades; Support. During the Subscription Term, Stardog may update the Service with all new versions, updates, and upgrades (collectively, “Upgrades”), without additional charge. Upgrades will become part of the Service and will be subject to the provisions of this Agreement. Stardog shall provide Customer support for the Service under the terms of Stardog’s Customer Support Policy (Support), which is attached as Exhibit A.
c. Affiliates and Contractors. Customer, including its Affiliates, may enter into orders with Stardog and its Affiliates. An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’s or Affiliate’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
2. CUSTOMER RESPONSIBILITIES; CUSTOMER DATA.
a. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is solely responsible all activity in or conducted through its account; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Stardog promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Documentation and applicable law.
b. Customer Data. Customer retains all rights, title and interest in and to and ownership of any data uploaded or made accessible to the Service (“Customer Data”). Customer represents and warrants that use and supply of Customer Data in connection with the Service, (i) is legally and rightfully authorized, (ii) does not infringe upon the intellectual property rights of any third party, and (iii) complies with all applicable local, state, national and international laws and regulations, including without limitation those laws and regulations related to privacy and export control.
c. Use of Customer Data. Customer grants to Stardog a non-exclusive, worldwide right to use Customer Data (i) in order to provide the Service to Customer; (ii) as necessary to maintain and improve the Service.
3. AVAILABILITY; WARRANTY.
a. Availability. Details of Service availability is found at Exhibit A below.
b. Warranty. Stardog warrants to Customer that, during the Subscription Term, the Service will perform materially in accordance with the Documentation. At no additional cost to Customer, and as Customer’s sole and exclusive remedy for nonconformity of the Service with this limited warranty, Stardog will use commercially reasonable efforts to correct any such nonconformity, provided Stardog receives written notice from Customer outlining the specific details of the warranty issue, and, if such efforts are unsuccessful, then Customer may terminate, and receive a refund of any pre-paid and unused fees for, the affected or Service for the remainder of the Subscription Term. This limited warranty shall be void if the non-conformity in the Service arises from (i) the use or operation of the Service or with an application or in an environment other than as set forth in the Documentation, (ii) modifications to the Service that were not made by Stardog’s authorized representatives or the express written authorization of Stardog; (iii) accident, disaster or event of force majeure, (iv) misuse, fault or negligence of or by Customer, (v) use of the Service in a manner for which it was not designed, or (vi) causes external to the Service such as, but not limited to, Customer systems and environment, power failure or electrical power surges.
c. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, STARDOG DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE STARDOG TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, STARDOG DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE OR UNINTERRUPTED.
a. Fees and Payment. Customer will be invoiced for use of the Service. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If Stardog has the legal obligation to pay or collect taxes for which Customer is responsible, Stardog will charge Customer and Customer will pay such amounts unless Customer provides Stardog with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Stardog’s Confidential Information includes, without limitation, the Service and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will, to the extent legally permissible, provide Discloser with advance notice to seek a protective order.
d. Data Security Measures.
i. Security Measures. Stardog: (i) implements and maintains reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of Customer’s Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks (collectively, Security Measures).
ii. Notice of Data Breach. If Stardog becomes aware that there was unauthorized access or disclosure of Customer Data, Stardog will notify Customer of such event without undue delay, immediately act to eliminate the breach and preserve forensic evidence, and provide available information to Customer, as available, regarding the nature and scope of the breach.
6. STARDOG PROPRIETARY RIGHTS; RESTRICTIONS.
a. Reservation of Rights. The Service and Documentation are the proprietary intellectual property of Stardog that contain trade secrets and are protected by copyright law. Subject to any license granted hereunder, Stardog retains sole and exclusive ownership of all right, title, and interest in and to the Service and Documentation. Any and all enhancements, modifications, corrections and derivative works that are made to the Service will be considered part of the Service for the purposes of this Agreement and will be owned by Stardog. Customer agrees not to alter, remove, deface or destroy any copyright, trademark or proprietary markings or confidential legends placed upon or contained in the Service and the Documentation.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service except as allowed by applicable law despite this limitation; or (vi) access to the service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Stardog may suspend Service to Customer if Stardog believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Stardog will work with Customer to address the issue and, where possible in Stardog’s discretion, restore Service as quickly as possible.
c. Third-Party Services. The Service interoperates with certain third-party services (which may be behind Customer’s firewall or a third-party web service) (“Third-Party Services”) and depend on continuing availability of and access to the Third-Party Services, including application programming interfaces, which are outside of Stardog’s control. Stardog is not responsible for any such Third-Party Services, or has any liability hereunder to the extent the use of the Service is affected or limited by any such Third Party Services. Customer must purchase Third-Party Services separately, if required by the third party.
7. TERM AND TERMINATION.
a. Term. Unless earlier terminated as set forth herein, this Agreement shall commence on the Effective Date first set forth above and expire when all Order Forms have expired. The Subscription Term specified in the Order Form will commence upon the Order Form Effective Date and will continue for the period of time set forth therein and will automatically renew for successive subscription terms equal to the initial Subscription Term, unless either party provides the other party with at least ninety (90) days prior written notice of its intent not to renew.
b. Termination for Material Breach. A party may terminate this Agreement or any Order Form (i) for any material breach not cured within thirty (30) days following written notice of such breach, or (ii) immediately upon written notice if the other party files for bankruptcy, becomes the subject of any bankruptcy proceeding or becomes insolvent. An Order Form may not be terminated by either party for any other reason, including without limitation for convenience.
c. Effect of Termination. If this Agreement or an Order Form is terminated for Stardog’s uncured material breach, Stardog will refund to Customer any prepaid fees for the remainder of any applicable Subscription Term(s). No other termination by either party shall relieve Customer of any payment obligations or commitments under any Order Form and, upon any termination, except termination by Customer under Section 7.b, Customer shall promptly pay all unpaid fees due through the end of the term of such Order Form. Upon termination, Customer must immediately cease using the Service and Documentation. Upon request, following any termination of this Agreement, each party will destroy or return all of the other party’s Confidential Information.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, STARDOG IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION, OR LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
b. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, STARDOG’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER FORM GIVING RISE TO THE CLAIM WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
9. INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
a. By Stardog. If a third party claims that the Service infringes any patent, copyright, or trade secret, Stardog will defend Customer against such claim at Stardog’s expense and indemnify and hold harmless Customer against all reasonably attorney’s fees incurred and damages finally awarded through judgment or settlement in such claim, provided that Customer promptly notifies Stardog in writing of the claim, allows Stardog sole control of the defense and/or settlement, and cooperates with Stardog in the defense or settlement of such action. Stardog shall have no obligation to Customer with respect to any infringement claim against Customer if such claim is based upon (i) Customer’s use of the Service in a manner not expressly authorized by this Agreement, (ii) the combination, operation, or use of the Service with third party material that was not provided by Company, if Customer’s liability would have been avoided in the absence of such combination, use, or operation, or (iii) modifications to the Service other than as authorized in writing by Stardog. If use of the Service is enjoined, Stardog may, at its option, secure for Customer the right to continue to use the Service, modify or replace the Service so that it is non-infringing, or, if neither of the foregoing options is available in Stardog’s reasonable opinion, terminate this Agreement and refund to Customer any pre-paid unused fees applicable to the remainder of the Subscription Term. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND STARDOG’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
b. By Customer. Customer will defend at its own expense any third party claim against Stardog arising from Customer Data and will indemnify and hold harmless Stardog against all reasonably attorney’s fees incurred and damages finally awarded through judgment or settlement in such claim. Stardog shall: (i) give Customer prompt written notice of such suit or claim, (ii) grant Customer sole control of the defense or settlement of such suit or claim and (iii) reasonably cooperate with Customer, at Customer’s expense, in its defense or settlement of the suit or claim.
10. GOVERNING LAW AND FORUM.
This Agreement is governed by the laws of the Commonwealth of Virginia (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Arlington County, Virginia, and Customer submits to this personal jurisdiction and venue. The UCITA as enacted in Virginia does not apply. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement; Amendment; Waiver. This Agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding. No modification or waiver of any term of this Agreement is effective unless both parties sign it.
b. No Assignment. Neither party may assign or transfer this Agreement to a third party, nor delegate any duty, except that the Agreement and all Order Forms may be assigned, without the consent of the other Party, as part of a merger or sale of all or substantially all a party’s businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
c. Export Compliance. The Service and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
d. Independent Contractors. The parties are independent contractors with respect to each other.
e. Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
f. No Additional Terms. Stardog objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer’s purchase order, acceptance, vendor portal or website. Neither Stardog’s acceptance of Customer’s purchase order nor its failure to object elsewhere to any provisions of any subsequent document, website, communication, or act of Customer shall be deemed acceptance thereof or a waiver of any of the terms hereof.
g. Order of Precedence. If there is an inconsistency between this Agreement and an Order Form, the Order Form shall prevail.
h. Survival of Terms. All provisions of this Agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this Agreement must survive expiration or termination of this Agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by nationally recognized overnight courier service, and addressed to the party to be notified at their address set forth above. All notices and other communications required or permitted under this Agreement shall be deemed given when delivered personally, or one (1) day after being deposited with such overnight courier service, or five (5) days after being deposited in the United States mail, postage prepaid to the address first set forth above, or to such other address as each party may designate in writing.
j. Feedback. If Customer provides feedback or suggestions about the Service, then Stardog may use such information without obligation, liability or accounting to Customer.
Service Level Agreement & Backup and Retention Policy
This Service Level Agreement (SLA) is incorporated into and governed by the attached Cloud Subscription Agreement.
Subject to the conditions in this SLA, Stardog will use commercially reasonable efforts to make the Service available for the Monthly Uptime Percentage of 99.9%.
Unavailable or unavailability means the Service has unpermitted downtime for read operations.
Maintenance Window means Service unavailability due to maintenance of which Stardog notifies Customer at least one week in advance via the Stardog website (currently https://status.stardog.com/) or via email. Stardog will use commercially reasonable efforts to schedule maintenance during weekend hours and to limit maintenance to four hours per month.
Unpermitted Downtime means the Service is unresponsive except:
- during a Maintenance Window, or
- due to causes beyond Stardog’s reasonable control, such as, for example, labor disputes; riots; civil disturbances; acts of God; acts of war or terror; government actions; orders of courts or tribunals; third-party API credential or permission errors or unavailability; Customer equipment; or computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, malicious or exploitable code, hacking, or denial of service attacks.
Large Bulk Uploads / Transactions
If Customer plans to upload data sets greater than 100 million triples or 10 gigabytes, Customer must coordinate such uploads with Stardog to help ensure that the uploads occur in a timely manner.
Backup and Retention
Stardog will retain back-ups and associated data for thirty (30) calendar days.
- This SLA does not apply to Sandboxes or other Customer non-production environments, or to Services designated in writing as beta, pilot, limited release, development, or test bed environments, or by descriptions of similar import, or to any Stardog products or services that expressly exclude this SLA as specified in the documentation for such products or services.
- Stardog will have no obligations under this SLA during any period in which Customer is in breach of the Cloud Subscription Agreement, including Customer’s payment obligations thereunder.
Last Revised June 16, 2022.