Enterprise Subscription License Agreement
This Enterprise Subscription License Agreement (“Agreement”) is made and entered into by and between Couchbase, Inc. (“Couchbase”) and Customer, and sets forth the terms under which Customer 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 SOWs 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 data centers or data repositories.
“Customer” means the person, legal entity or organization, as applicable, entering into an Order or SOW that references this Agreement.
“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 thirty (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 services terms 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.
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, revocable, 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;
(i) use or transfer Licensed Nodes and/or Licensed Devices designated to a particular Production Deployment or project to another or new Production Deployment or project; or
(j) use the Software and/or Documentation for the purposes of, or publicly display or communicate the results of, benchmarking or competitive analysis of the Software, or developing, using, providing, or supporting products or services competitive to Couchbase.
3.2 If Customer does not comply with the license terms or the foregoing restrictions, Couchbase may (without refund or credit), at its sole discretion: (i) terminate this Agreement (including all active Orders and SOWs hereunder) thereby revoking Customer’s license to the Software and Documentation, or (ii) 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 Professional Services to Customer, 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.
4.2 Unless explicitly set forth in an Order or SOW, any Professional Services purchased under this Agreement shall expire upon the end of the Subscription Term. Any unused Professional Services after the end of the Subscription Term shall expire without refund of any prepaid Fees. For Professional Services that would have been invoiceable in arrears, Couchbase will provide a final invoice for the unused Professional Services in accordance with this Agreement. Unless otherwise stated in this Order, Customer shall pay Couchbase’s reasonable travel and incidental expenses incurred in conducting (in relation to the Professional Services or otherwise) on-site activities at Customer’s site upon receiving an invoice from Couchbase.
5. Proprietary Rights.
5.1 The Software (including the source code, any modifications, derivatives, improvements, or enhancements 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 Fees in advance, within thirty (30) days of the date of the invoice, unless explicitly otherwise indicated in the applicable Order or SOW. 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. Fees are non-refundable except to the extent expressly provided for in this Agreement. 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 by Customer are exclusive of applicable taxes and duties (such as, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax (collectively, the “Transaction Taxes”). If applicable, Couchbase may charge and Customer shall pay all Transaction Taxes that Couchbase is legally obligated or authorized to collect from Customer. Customer will provide such information to Couchbase as reasonably required to determine whether Couchbase is obligated to collect Transaction Taxes from Customer. Couchbase will not collect, and Customer will not pay, any Transaction Taxes for which Customer furnishes a properly completed exemption certificate or a direct payment permit certificate for which Couchbase may claim an available exemption from such Transaction Taxes. All payments made by Customer to Couchbase under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Couchbase is equal to the amount then due and payable under this Agreement. Couchbase will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
7.3 Customer is obligated to pay all applicable Fees without any requirement for Couchbase to provide a purchase order (“PO”) number on Couchbase’s invoice (or otherwise). If Customer sends Couchbase a PO in lieu of executing an Order, the PO will be deemed a binding contract offer which Couchbase may accept by (i) signing the PO or (ii) sending a written order acknowledgment of acceptance of the PO (thereby forming a mutually agreed Order governed by this Agreement). In any event, only the Commercial Details listed on PO shall be considered part of the Order created (exclusive of any pre-printed terms on the PO). 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.
8. Records Retention and Audit.
8.1 During any Subscription Term and for at least one (1) year thereafter, 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 as well as Customer’s compliance with its obligations post-termination or expiration), and provide Couchbase with such records within ten (10) days of request.
8.2 Every three (3) months within a Subscription Term (or on another cadence as mutually agreed between the parties), Customer shall self-certify to Couchbase the total number of Licensed Nodes and Licensed Devices currently deployed and used by Customer in each cluster running in a production, test, or development environment. Such self-certification shall be in accordance with Couchbase’s instruction and in the form of either a (i)