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 LICENSE AGREEMENT – FREE EDITION (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.
License Grant. Subject to Licensee's compliance with the terms and conditions of this Agreement, Couchbase Inc. hereby grants to Licensee a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to install and use the Software only for Licensee's own internal production use on up to two (2) Licensed Servers or for Licensee's own internal non-production use for the purpose of evaluation and/or development on an unlimited number of Licensed Servers.
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.
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.
Support. Couchbase Inc. will provide Licensee with: (a) periodic Software updates to correct known bugs and errors to the extent Couchbase Inc. incorporates such corrections into the free edition version of the Software; and (b) access to, and use of, the Couchbase Inc. support forum available at the following URL: http://forums.membase.org. 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. Couchbase Inc. may, at its discretion, modify, suspend or terminate support at any time upon notice to Licensee.
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 hereunder. 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 used the Software in excess of the authorized Licensed Servers, then (i) Couchbase Inc. will invoice Licensee, and Licensee will promptly pay Couchbase Inc., the applicable licensing fees for such excessive use of the Software, which fees will be based on Couchbase Inc.'s price list in effect at the time the audit is completed; and (ii) Licensee will pay Couchbase Inc.'s reasonable costs of conducting the audit.
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.
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.
Agreement Term and Termination. The term of this Agreement shall begin on the Effective Date and will continue until terminated by the parties. Licensee may terminate this Agreement for any reason, or for no reason, by providing at least ten (10) days prior written notice to Couchbase Inc. Couchbase Inc. may terminate this Agreement if Licensee materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for ten (10) days following written notice of the breach. Upon termination of this Agreement, Licensee will, at Couchbase Inc.'s option, 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, 6, 7, 8, 9, 10 and 11.
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 ONE THOUSAND DOLLARS (US $1,000). 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.
General. Couchbase Inc. shall not be liable for any delay or failure in performance 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. 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.
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. "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.
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