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 and/or receive certain consulting services under Orders governed by this Agreement.
Note that this Agreement cannot be changed without a mutually signed amendment. Couchbase will not in any way change the terms posted at the URL above. Any Orders or SOW placed under this version of the Agreement may only be modified by a mutually signed amendment.
1.1 Capitalized terms used herein shall have the following definitions:
“Commercial Details” means the identified product(s), quantity (number of Licensed Nodes and/or Licensed Devices), price, server size metric, support level, subscription start and end date, and professional service description.
“Cross-Data Center Replication” means an asynchronous data replication system, involving replicating active data to multiple, geographically diverse datacenters or data repositories.
“Deliverables” means reports and other deliverables Couchbase may design, develop for, or deliver to Customer during the course of providing Professional Services.
“Documentation” means the technical user guides or manuals provided by Couchbase related to the Software.
“Fee” means the sum or fee specified on the applicable Order or SOW and includes any other fees or charges payable under this Agreement.
“Licensed Device” means a unique device (such as a mobile device, laptop, or IoT device) that stores data locally using the “Couchbase Lite” product during a rolling 30 day period.
“Licensed Node” means an instance of the Software running on a server, including a physical server, server blade, virtual machine, software container, or cloud server.
“Core” means the virtual representation of one or more hardware threads. A hardware thread can be either a physical core or a hyper-threaded core.
“RAM” or Random Access Memory, means the main memory used to store data for quick access by a computer’s processor.
“Production Deployment” means all Licensed Nodes and Licensed Devices within a particular cluster or clusters that are licensed to support a live workload or application.
“Order” means a transaction document (such as a signed sales quote) identifying the Professional Services, Software, the number of Licensed Nodes and/or Licensed Devices, the applicable Fee and Subscription Term.
“Software” means the object code version of the applicable Couchbase product as reflected in an Order.
“Subscription Term” means the period stated on an Order or SOW during which Customer is licensed to use the Software and Documentation and receive the Professional Services and Support.
“Support” 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/support-policy).
“SOW” means a transaction document or Order identifying Professional Services purchased.
“Professional Services” means consulting services and Deliverables as identified in the applicable Order or SOW, provided by Couchbase to Customer, using commercially reasonable efforts.
The term “including” means including but not limited to.
2. License Grant.
2.1 During the Subscription Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Couchbase grants to Customer a non-exclusive, non-transferable, non-sublicensable, fee bearing license to install and use the Software and Documentation only for Customer’s own internal use and limited to the number of Licensed Nodes (and where applicable the number of Licensed Devices) paid for by Customer and in accordance with any additional license terms specified in the applicable Order, and for no other purposes whatsoever.
3.1 Customer shall not:
(a) copy or use the Software and Documentation in any manner except as expressly permitted in this Agreement;
(b) use or deploy the Software in excess of the number of Licensed Nodes and Licensed Devices for which Customer has paid the applicable Fee;
(c) use or deploy the Software in excess of the number of Cores and RAM for each Licensed Node for which Customer has paid the applicable Fee;
(d) transfer, sell, rent, lease, lend, distribute, or sublicense the Software and Documentation to any third party;
(e) 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;
(f) reverse engineer, disassemble, or decompile the Software (except to the extent such restrictions are prohibited by law);
(g) alter, modify, enhance or prepare any derivative work from or of the Software and Documentation;
(h) alter or remove any proprietary notices in the Software and Documentation; or
(i) export the Software in violation of U.S. Department of Commerce export administration rules or any other export laws or regulations.
3.2 If Customer does not comply with the license terms or the foregoing restrictions, Couchbase may (without refund or credit) terminate Customer’s license to the Software and Documentation or, at its sole discretion, suspend Customer’s license to the Software and Documentation until Customer comes into compliance with such terms and restrictions.
3.3 Customer acknowledges that a breach of its obligations to Couchbase under this Agreement, other than the payment obligations, will result in irreparable and continuing damage for which monetary damages may not be sufficient, and agrees that Couchbase will be entitled to receive in addition to its other rights and remedies hereunder or at law, injunctive and/or other equitable relief. All remedies of Couchbase set forth in this Agreement are cumulative and in addition to, and not in lieu of any other remedy of Couchbase as law or in equity.
4.1 The parties may agree to have Couchbase provide additional Professional Services, which shall be set forth on the applicable Order or SOW signed by both parties. Such Professional Services shall be governed by the terms and conditions of this Agreement.
5. Proprietary Rights.
5.1 The Software (and any modifications or derivatives thereto) and all Documentation and Professional Services, are and shall remain the sole property of Couchbase and its licensors. Except for the license rights granted under this Agreement, Couchbase and its licensors retain all right, title and interest in and to the Software, Documentation and Professional Services, including all intellectual property rights therein and thereto.
5.2 The Software may include third party open source software components and such third-party components shall be licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, Documentation or materials accompanying the Software.
5.3 If Customer 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.
6.1 Couchbase will provide Customer with the level of Support indicated on the applicable Order and paid for by Customer. For all Licensed Nodes and Licensed Devices within a specific Production Deployment, all such nodes and instances must be at the same level of Support, including any that are used for disaster recovery or backup that are associated with the specific Production Deployment. For the avoidance of doubt, each specific Production Deployment can have its own level of Support. Similarly, all Licensed Nodes and Licensed Devices in a development or test environment must be at the same level of Support but such Licensed Nodes and Licensed Devices may be at a different support level than the Production Deployment(s).
6.2 When using the Cross-Data Center Replication feature, Customer must have all Licensed Nodes and Licensed Devices at the same level of Support 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.
7.1 Customer will pay Couchbase the Fee(s) in advance, unless otherwise indicated in the applicable Order. All payments are non-cancelable, not subject to the Limitation of Liability in Section 12 below, and shall be made in the currency stated on the applicable Order and are due within thirty (30) days of the date of the invoice, unless otherwise stated on 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 applicable law. Customer will reimburse Couchbase for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.
7.2 All Fees payable under this Agreement are:
(a) net amounts and are payable in full, without deduction for taxes or duties of any kind;
(b) exclusive of, and Customer is responsible for, all duties and taxes (including Value Added Tax which shall be paid by Customer, 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; and
(c) non-refundable except to the extent expressly provided for in this Agreement.
7.3 If Customer sends Couchbase a purchase order (“PO”), the PO will be deemed a binding contract offer which Couchbase may accept by signing the PO or sending a written order acknowledgment of acceptance of the PO (thereby forming a mutually agreed Order governed by this Agreement); in such case the only terms listed on the accepted PO which will form the Order are the Commercial Details; and any other terms on the PO which either (i) conflict with the terms of this Agreement, or (ii) are not agreed under this Agreement, will be void and without effect, even if Couchbase signs the PO. All accepted POs will automatically be governed by this Agreement (even if the PO does not reference this Agreement). It is expressly agreed that Section 7 shall apply in respect of any PO sent by Customer and accepted by Couchbase. It is expressly agreed that this Section 7.3 shall apply in respect of any PO sent by Licensee to Couchbase.
8. Records Retention and Audit.
8.1 Customer shall maintain complete and accurate records to permit Couchbase to verify Customer’s compliance with this Agreement (including the number of Licensed Nodes and Licensed Devices used by Customer), and provide Couchbase with such records within ten (10) days of request.
8.2 Upon at least thirty (30) days prior written notice, Couchbase may audit Customer’s use of the Software to solely assess whether Customer is in compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer will provide Couchbase with access to the relevant Customer records and facilities. If an audit reveals that Customer has underpaid fees to Couchbase, then Couchbase will invoice Customer, and Customer 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 Fee paid by Customer for the Software, then Customer will also pay Couchbase’s reasonable costs of conducting the audit.
9.1 Customer and Couchbase will maintain the confidentiality of Confidential Information. “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.
9.2 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.
9.3 Upon termination 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 law or regulation.
10. DISCLAIMER OF WARRANTY
10.1 THE SOFTWARE, DOCUMENTATION AND ANY PROFESSIONAL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND NEITHER COUCHBASE, ANY OF ITS AFFILAITES OR LICENSORS (COLLECTIVELY, THE “COUCHBASE PARTIES”) REPRESENT OR WARRANT THAT THE SOFTWARE, DOCUMENTATION OR PROFESSIONAL SERVICES PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOFTWARE WILL O