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. 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 and Documentation only for Licensee’s own internal use and limited to the number of Licensed Nodes paid for by Licensee (and if stated in the Order, the number of Embedded Database Instances paid for by Licensee).
2. Restrictions. Licensee will 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 Embedded Database Instances for which Licensee has paid the applicable Subscription Fee; (c) transfer, sell, rent, lease, lend, distribute, or sublicense the Software and Documentation 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 and Documentation; (g) alter or remove any proprietary notices in the Software and Documentation; 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 (without refund or credit) terminate Licensee’s license to the Software and Documentation or, at its sole discretion, suspend Licensee’s license to the Software and Documentation until Licensee comes into compliance with such terms and restrictions.
3. Proprietary Rights. The Software (and any modifications or derivatives thereto) and all Documentation and Services, are and shall remain the sole property of Couchbase and its licensors. Except for the license rights granted herein, Couchbase and its licensors retain all right, title and interest in and to the Software, Documentation and Services, 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 will provide Licensee with the level of Support indicated on the applicable Order and paid for by Licensee. For all Licensed Nodes and Embedded Database Instances 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 Embedded Database Instances in a development or test environment must be at the same level of Support but such Licensed Nodes and Embedded Database Instances may be at a different support level than the Production Deployment(s). When using the Cross Data Center Replication feature, Licensee must have all Licensed Nodes and Embedded Database Instances 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.
5. Payments. Licensee will pay Couchbase the Subscription Fees and any other applicable fees as set forth in each Order. All payments 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 applicable 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. All 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. If Licensee sends Couchbase a purchase order (“PO”), the PO will be deemed a binding contract offer which Couchbase can accept by signing the PO or sending a written 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 all other terms (whether additional or conflicting with this Agreement) on the PO 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). “Commercial Details” means the identified product(s), quantity (e.g, number of Licensed Nodes and/or Embedded Database Instances), price, server size metric, support level, subscription start and end date, and professional service description.
6. Records Retention and Audit. Licensee shall maintain complete and accurate records to permit Couchbase to verify Licensee’s compliance with this Agreement (including the number of Licensed Nodes and Embedded Database Instances 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 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.
8. Disclaimer of Warranty. THE SOFTWARE, DOCUMENTATION AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COUCHBASE DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION OR 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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.
9.1 Indemnification. Subject to the terms of this 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, Documentation or Services infringe 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 (c) allows Couchbase to control the defense and all related settlement negotiations.
9.2 Injunction. If use of the Software, Documentation or Services are 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, Documentation or Services; (b) replace or modify the affected Software, Documentation or Services that infringe so that they do not infringe; or (c) if either option (a) or (b) is not commercially feasible in Couchbase’s reasonable opinion, as applicable, terminate the licenses and affected Services and refund Licensee a pro-rata amount of the Subscription Fees and fees for the affected Services.
9.3 Exclusions. Couchbase will have no liability for any infringement claim, (A) as to Software and Documentation, (i) based on modifications to the Software and Documentation made by a party other than Couchbase, to the extent a claim would not have occurred but for such modifications, (ii) based on the use of other than the then-current version of the Software provided that Couchbase has given reasonable written notice to Licensee to migrate to the then-current version of the Software, unless the infringing portion is also in the then-current, unaltered release, (iii) 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, (iv) attributable to any third party open source software components, or (v) to the extent based on Licensee’s use of the Software other than in accordance with this Agreement or the applicable Documentation; or (B) as to Services, (i) based on modifications to the Services made by a party other than Couchbase, to the extent a claim would not have occurred but for such modifications, (ii) based on Licensee’s use of the Services in violation of this Agreement, and such use causes such infringement, or (iii) based on infringement resulting from the combination of the Services, with any hardware, data or software not provided by Couchbase.
9.4 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. Term and Termination. This Agreement shall begin on the Agreement Effective Date and shall apply to all Orders that reference this Agreement. Subject to Couchbase’s rights under Section 2 above, either party may terminate an Order or terminate this Agreement 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 an Order or this Agreement. Upon termination or expiration of all Orders or this Agreement, Licensee will promptly return or destroy (and provide written certification of such destruction) the Software, Documentation and Deliverables and all copies and portions thereof, in all forms and types of media. The following sections will survive termination or expiration of any Order and/or 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: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (B) THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION OR THE SERVICES; OR (C) 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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