Couchbase, Inc. Enterprise Subscription License Agreement for Standard or Premium Licenses

IMPORTANT-READ CAREFULLY: BY CLICKING THE “I ACCEPT” BOX OR INSTALLING, DOWNLOADING OR OTHERWISE USING THIS SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, YOU, ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY (“LICENSEE”) AGREE TO ALL THE TERMS OF THIS ENTERPRISE SUBSCRIPTION LICENSE AGREEMENT FOR STANDARD, OR PREMIUM LICENSES (THE “AGREEMENT”) REGARDING YOUR USE OF THE SOFTWARE.  YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND THE LICENSEE TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT SELECT THE “I ACCEPT” BOX AND DO NOT INSTALL, DOWNLOAD OR OTHERWISE USE THE SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK “I ACCEPT” OR OTHERWISE INSTALL, DOWNLOAD OR USE THE SOFTWARE.

This Enterprise Subscription License Agreement (“Agreement”) is entered into with effect as of the date this Agreement is signed (“Effective Date”) by and between the company or individual identified on the attached Quote (“Licensee”), with its initial address for notices being the address identified on the attached Quote and Couchbase Inc., with its initial address for notices being 2440 West El Camino Real, #101, Mountain View, CA 94040, Attention: Chief Executive.

1. License Grant. During the Subscription Term, and subject to Licensee’s compliance with the terms and conditions of this Agreement, Couchbase Inc. grants to Licensee a non-exclusive, non-transferable, non-sublicensable, fee bearing license to install and use the Software only for Licensee’s own internal production use and limited to the number of Licensed Servers for which Licensee is current in the payment of the applicable Subscription Fee. Licensee may make one (1) copy of the Software for back-up or archival purposes.

2. Restrictions. Licensee will not: (a) copy or use the Software in any manner except as expressly permitted in this Agreement; (b) use or deploy the Software on any server in excess of the Licensed Servers for which Licensee has paid the applicable Subscription Fee unless it is covered by a valid license; (c) transfer, sell, rent, lease, lend, distribute, or sublicense the Software to any third party; (d) use the Software for providing time-sharing services, service bureau services or as part of an application services provider or as a service offering primarily designed to offer the functionality of the Software; (e) reverse engineer, disassemble, or decompile the Software (except to the extent such restrictions are prohibited by law); (f) alter, modify, enhance or prepare any derivative work from or of the Software; (g) alter or remove any proprietary notices in the Software; (h) make available to any third party the functionality of the Software or any license keys used in connection with the Software; (i) publically display or communicate the results of internal performance testing or other benchmarking or performance evaluation of the Software; or (j) export the Software in violation of U.S. Department of Commerce export administration rules or any other export laws or regulations. If Licensee does not comply with the license terms or the foregoing restrictions, Couchbase Inc. may terminate or suspend Licensee’s account and access to the Software (without refund or credit) until Licensee comes into compliance with such terms and restrictions.

3. Proprietary Rights. The Software, and any modifications or derivatives thereto, is and shall remain the sole property of Couchbase Inc. and its licensors, and, except for the license rights granted herein, Couchbase Inc. and its licensors retain all right, title and interest in and to the Software, including all intellectual property rights therein and thereto. The Software may include third party open source software components. If Licensee is the United States Government or any contractor thereof, all licenses granted hereunder are subject to the following: (a) for acquisition by or on behalf of civil agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subpart 12.1212 of the Federal Acquisition Regulation (FAR), 48 C.F.R.12.1212, and its successors; and (b) for acquisition by or on behalf of the Department of Defense (DOD) and any agencies or units thereof, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement and as specified in Subparts 227.7202-1 and 227.7202-3 of the DOD FAR Supplement, 48 C.F.R.227.7202-1 and 227.7202-3, and its successors. Manufacturer is Couchbase, Inc.

4. Support.   Couchbase Inc. offers several levels of Support Services for the Software (e.g., standard, and premium), each of which is described in Exhibit A. Licensee must have Licensed Servers at the same level of Support Services for all instances in a Production Deployment running the Software.  Licensee must also have Licensed Servers at the same level of Support Services for all instances in a development and test environment running the Software, although these Support Services may be at a different level than the production Licensed Servers. When using the Cross Data Center Replication feature, Licensee must have Licensed Servers at the same level of Support Services for all instances on all sides of the replication connection. As part of the Support Services, unless Licensee opts-out, Couchbase Inc. may have remote access to the Software that will enable it to receive data and information directly from the Software regarding Software bugs, errors, and other similar technical support issues. Couchbase Inc. will only use such data and information for the purposes of providing the Support Services and in aggregate form for the purposes of improving the Software. If Licensee elects to disable Couchbase Inc.’s remote access to the Software, Couchbase Inc. will not be responsible for any related delays in providing the Support Services.

5. Fees.  Licensee will pay Couchbase Inc. the applicable recurring Subscription Fees for each Licensed Server on which a copy of the Software is deployed by Licensee. If this Agreement and the Subscription Term is renewed, for each annual year of the Subscription Term, Licensee shall pay the full renewal Subscription Fee for all deployed Licensed Servers. Annual fees will be due on each one (1) year anniversary of the Effective Date. Couchbase Inc. reserves the right to change the Subscription Fee for the next Renewal Term prior to the start date thereof.

6. Payments.  All payments of fees or charges under this Agreement shall be made in US dollars and are due within thirty (30) days of the date of the applicable Couchbase Inc. invoice. Late payments will bear interest at the lesser of one and one half percent (1 ½%) per month or the maximum rate allowed by law. In addition, Licensee will reimburse Couchbase Inc. for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.  All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Subscription Fees are exclusive of, and Licensee is responsible for, all shipping costs, duties and taxes (including but not limited to Value Added Tax which shall be paid by Licensee, if applicable, at the rate and in the manner for the time being prescribed by law), excluding taxes based on Couchbase Inc.'s net income. All fees are non-refundable.

7. Records Retention and Audit. Licensee shall maintain complete and accurate records to permit Couchbase Inc. to verify the number of Licensed Servers used by Licensee during the Subscription Term. Upon Couchbase Inc.'s written request, Licensee shall: (a) provide Couchbase Inc. with such records within ten (10) days; and (b) will furnish Couchbase Inc. with a certification signed by an officer of Licensee verifying that the Software is being used pursuant to the terms of this Agreement. Upon at least thirty (30) days prior written notice, Couchbase Inc. may audit Licensee’s use of the Software to ensure that Licensee is in compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Licensee’s facilities and will not unreasonably interfere with Licensee’s business activities. Licensee will provide Couchbase Inc. with access to the relevant Licensee records and facilities. If an audit reveals that Licensee has underpaid fees to Couchbase Inc. during the period audited, then Couchbase Inc. will invoice Licensee, and Licensee will promptly pay Couchbase Inc., for such underpaid fees based on Couchbase Inc.'s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the Subscription Fee paid by Licensee for the Software, then Licensee will also pay Couchbase Inc.'s reasonable costs of conducting the audit.

8. Confidentiality.  Licensee and Couchbase Inc. 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 terms of this Confidentiality section shall survive termination of this Agreement. 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.

9. Disclaimer of Warranty. THE SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COUCHBASE INC. DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER WILL MEET LICENSEE’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. COUCHBASE INC. HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

10. Indemnification of Third Party Claims. 

10.1 Indemnification. Couchbase Inc. will indemnify and defend Licensee from and against any damages finally awarded against Licensee in connection with any third party claims that the Software infringes any United States patent, United States copyright or United States trademark; provided that: (a) Licensee promptly notifies Couchbase Inc. of the claim; (b) Licensee gives Couchbase Inc. all necessary information regarding the claim; (c) Licensee reasonably cooperates with Couchbase Inc.;  and (d) allows Couchbase Inc. to control the defense and all related settlement negotiations.

10.2 Injunction. If an injunction is sought or obtained against Licensee’s use of the Software as a result of a third party infringement claim or in Couchbase Inc.'s opinion is likely to be enjoined, Couchbase Inc. may, at its sole option and expense, (a)  procure for Licensee the right to continue using the affected Software, (b) replace or modify the affected Software with substantially equivalent software functionality so that it does not infringe, or, if either (a) or (b) is not commercially feasible in Couchbase Inc.'s opinion, (c) terminate the licenses.

10.3 Exclusions. Couchbase Inc. will have no liability for any infringement claim (a) based on modifications to the Software made by a party other than Couchbase Inc., if a claim would not have occurred but for such modifications, (b) based on the use of other than the then-current, unaltered version of the Software, unless the infringing portion is also in the then-current, unaltered release; (c) based on the use, operation or combination of the Software with non-Couchbase Inc. programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; (d) attributable to any third party open source software components; or (e) based on Licensee’s use of the Software other than in accordance with this Agreement or the applicable Documentation.

10.4 Sole Remedy. THE TERMS OF THIS SECTION CONSTITUTE THE ENTIRE LIABILITY OF COUCHBASE INC., AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11. Subscription Term and Renewal; Termination. The initial Subscription Term shall begin on the Effective Date and will continue for a period of one (1) year. Thereafter, this Agreement (including any subscription licenses and Support Services) will automatically renew at Couchbase Inc.’s then-current fees for successive terms of one (1) year, unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the end of a term (the “Renewal Term”).  Subject to Couchbase Inc.’s rights under Section 2 above, either party may terminate this Agreement prior to the end of a term if the other party materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach. Licensee’s obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement.  Upon termination or expiration of this Agreement, Licensee will promptly return or destroy (and provide written certification of such destruction) the applicable Software and all copies and portions thereof, in all forms and types of media. The following sections will survive termination or expiration of this Agreement: Sections 2, 3, 5, 6, 8, 9, 10, 11, 12, 13 and 14.

12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COUCHBASE INC. OR ITS LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION OR THE SERVICES PROVIDED BY COUCHBASE INC. HEREUNDER INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER LOSSES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT WILL COUCHBASE INC.’S OR ITS LICENSORS’ AGGREGATE LIABILITY TO LICENSEE, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY LICENSEE TO COUCHBASE INC. UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF A CLAIM. The parties expressly acknowledge and agree that Couchbase Inc. has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Couchbase Inc. and Licensee and form a basis of the bargain between the parties.

13. General. Neither party shall be liable for any delay or failure in performance (except for any payment obligations) due to causes beyond its reasonable control. Neither party will, without the other party's prior written consent, make any news release, public announcement, denial or confirmation of this Agreement, its value, or its terms and conditions, or in any manner advertise or publish the fact of this Agreement. Notwithstanding the above, Couchbase Inc. may use Licensee's name and logo, consistent with Licensee's trademark policies, on customer lists so long as such use in no way promotes either endorsement or approval of Couchbase Inc. or any Couchbase Inc. products or services. Licensee may not assign this Agreement, in whole or in part, by operation of law or otherwise, without Couchbase Inc.'s prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. All waivers must be in writing and signed by both parties. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by confirmed facsimile, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified above or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt. This Agreement shall be governed by the laws of the State of California, U.S.A., excluding its conflicts of law rules. The parties expressly agree that the UN Convention for the International Sale of Goods (CISG) will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. To the extent there is a conflict between this Agreement and the terms of any "shrinkwrap" or "clickwrap" license included in any package, media, or electronic version of Couchbase Inc.-furnished software, the terms and conditions of this Agreement will control. No additional or conflicting terms set forth on any purchase order, order acknowledgement or other document shall have any force or effect and are hereby rejected unless expressly agreed upon by the parties’ duly authorized representatives in writing.  Each of the parties has caused this Agreement to be executed by its duly authorized representatives as of the Effective Date. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

14. Definitions.  Capitalized terms used herein shall have the following definitions: “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. “Documentation” means any technical user guides or manuals provided by Couchbase Inc. related to the Software. “Licensed Server” means an instance of the Software running on one (1) operating system.  Each operating system instance may be running directly on physical hardware, in a virtual machine, or on a cloud server. “Couchbase” means Couchbase, Inc. “Couchbase Website” means www.Couchbase.com. “Renewal Term” has the meaning given to it in Section 11. “Software” means the object code version of the applicable elastic data management server software provided by Couchbase Inc. and ordered by Licensee during the ordering process on the Couchbase Website. “Subscription Fee” means the amount of a recurring annual subscription fee specified on the Couchbase Website (or otherwise quoted to Licensee) that is due for each copy of the Software deployed on the Licensed Servers. The Subscription Fee includes fees for Support Services. “Subscription Term” means, collectively, the initial subscription term described in Section 11 and any Renewal Term. “Support Services” means the technical support and Software maintenance services (including the right to receive Software updates and upgrades) made generally available by Couchbase Inc. as described on the Couchbase Website www.Couchbase.com/products-and-services/Couchbase-support. “Production Deployment” means a cluster or clusters of Licensed Servers that are being used to support a live workload for an application.  Any cluster that is connected to a Production Deployment using Couchbase’s cross data center replication functionality is considered part of a Production Deployment.

If you have any questions regarding this Agreement, please contact us at sales@couchbase.com.

Last Revised: October 28, 2013