Enterprise Subscription License Agreement
This Enterprise Subscription License Agreement (“Agreement”) is made and entered into by and between Couchbase and Licensee, and sets forth the terms under which Licensee may use certain Couchbase software under Orders governed by this Agreement.
1. License Grant. During the Subscription Term, and subject to Licensee’s compliance with the terms and conditions of this Agreement, Couchbase 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 use and limited to the number of Licensed Nodes paid for by Licensee.
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 in excess of the number of Licensed Nodes for which Licensee has paid the applicable Subscription Fee;
(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; or
(h) 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 may terminate or suspend Licensee’s license 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 and its licensors, and, except for the license rights granted herein, Couchbase 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 offers several levels of Support Services for the Software. Couchbase will provide Licensee with the level of Support Services indicated on the Order and paid for by Licensee. Licensee must have Licensed Nodes at the same level of Support Services for all Production Deployment instances running the Software, including any instances that are used for disaster recovery or backup that are associated with the Production Deployment. For all instances in a development and test environment running the Software, Licensee must also have all Licensed Nodes at the same level of Support Services although these Support Services may be at a different level than the production Licensed Nodes. When using the Cross Data Center Replication feature, Licensee must have all Licensed Nodes at the same level of Support Services for all instances on all sides of the replication connection, including if one side of the connection is only used for disaster recovery or backup.
5. Payments. Licensee will pay Couchbase the applicable Subscription Fees. All payments of fees or charges under this Agreement shall be made in the currency stated on the Order and are due within thirty (30) days of the date of the 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 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 duties and taxes (including 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), except for taxes based on Couchbase's net income. All fees are non-refundable, except to the extent expressly provided for in this Agreement.
6. Records Retention and Audit. Licensee shall maintain complete and accurate records to permit Couchbase to verify Licensee’s compliance with the Agreement (including the number of Licensed Nodes used by Licensee), and provide Couchbase with such records within ten (10) days of request. Upon at least thirty (30) days prior written notice, Couchbase may audit Licensee’s use of the Software to assess whether 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 with access to the relevant Licensee records and facilities. If an audit reveals that Licensee has underpaid fees to Couchbase, then Couchbase will invoice Licensee, and Licensee will promptly pay Couchbase, for such underpaid fees based on Couchbase'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's reasonable costs of conducting the audit.
7. Confidentiality. Licensee and Couchbase 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 or expiration 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. A party may disclose the other party’s Confidential Information to the extent required by any law or regulation.
8. Disclaimer of Warranty. THE SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COUCHBASE 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 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.
9. Indemnification of Third Party Claims.
Subject to section 9, Couchbase 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 or other intellectual property rights; provided that: (a) Licensee promptly notifies Couchbase of the claim; (b) Licensee gives Couchbase all necessary information regarding the claim and reasonably cooperates with Couchbase; and (e) allows Couchbase to control the defense and all related settlement negotiations.
If use of the Software is enjoined, or Couchbase determines that such use may be enjoined, Couchbase will, 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 so that it does not infringe, or, if either (a) or (b) is not commercially feasible in Couchbase's opinion,(c) terminate the licenses and refund Licensee a pro-rata amounts of the Subscription Fees.
Couchbase will have no liability for any infringement claim (a) based on modifications to the Software made by a party other than Couchbase, to the extent a claim would not have occurred but for such modifications,(b) based on the use of other than the then-current, 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 programs, data, or equipment to the extent 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) to the extent based on Licensee’s use of the Software other than in accordance with this Agreement or the applicable Documentation.
- Sole Remedy.
THE TERMS OF THIS SECTION CONSTITUTE THE ENTIRE LIABILITY OF COUCHBASE, 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.
10. Subscription Term Termination. The Agreement shall apply to all Orders that reference this Agreement. The “Subscription Term” shall begin on the Order effective date and will continue for a period of time stated in the applicable Order. Subject to Couchbase’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 any Order or 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, 5-13.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COUCHBASE 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 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’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 THAT ARE ATTRIBUTABLE TO THE ORDER FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY. The parties expressly acknowledge and agree that Couchbase has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Couchbase and Licensee and form a basis of the bargain between the parties.
12. 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. Couchbase may use Licensee's name and logo, consistent with Licensee's trademark policies, on customer lists, and may publicly announce Licensee as a customer. Licensee may not assign this Agreement, in whole or in part, by operation of law or otherwise, without Couchbase'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 will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, 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. 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. 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. The customer has not relied on the availability of any future version of the purchased product or any future product in making its decision to purchase the Software license.
13. 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 the Software and any non-public technical and business information (including pricing). 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 to the disclosing party;
(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 the technical user guides or manuals provided by Couchbase related to the Software.
“Licensed Node” means an instance of the Software running on physical hardware or a virtual machine, or on a cloud server.
“Software” means the object code version of the applicable Couchbase product as reflected in an Order.
“Subscription Fee” means the fee specified in the Order for the right to use the Software for up to the number of Licensed Nodes stated in the Order. The Subscription Fee includes fees for Support Services.
“Subscription Term” means, collectively, the initial subscription term described in Section 10.
“Support Services” means the technical support and Software maintenance services (with the right to receive Software updates and upgrades made generally available by Couchbase) as described in the then-current Couchbase support policy (located at www.couchbase.com/products-and-services/couchbase-support).
“Production Deployment” means a cluster or clusters of Licensed Nodes that are being used to support a live workload for an application.
“Order” means a transaction document (such as a signed sales quote) identifying the Software licensed to Licensee, the number of Licensed Nodes, and the applicable Subscription Fee.
The term “including” means including but not limited to.
ESLA v1: 3 March 2015