COUCHBASE, INC. LICENSE AGREEMENT
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 AND/OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY (COLLECTIVELY, “CUSTOMER”), AGREE TO ALL THE TERMS OF THIS LICENSE AGREEMENT AND, IF APPLICABLE, THE NON-GA OFFERING SUPPLEMENTAL TERMS (COLLECTIVELY, THE “AGREEMENT”) REGARDING CUSTOMER’S USE OF THE SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND CUSTOMER 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.
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, accepting the terms and conditions hereunder and/or 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 any sum, fee(s) or charges specified on an Order, SOW and/or 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 either (i) as reflected in an Order or (ii) as otherwise made available to Customer under this Agreement.
“Subscription Term” means, as applicable: (i) the period stated on an Order or SOW, if any, during which Customer is licensed to use the Software and Documentation and receive the Professional Services and Support; (ii) the first date of Productive Use for Enterprise Licenses without or before an Order is signed and shall continue until such Enterprise License is either (a) memorialized in an Order (in which case the definition of subsection (i) herein shall apply), or (b) terminated in accordance with the terms herein; or (iii) the date of download for Free Licenses and shall continue until such Free License is either (a) converted into an Enterprise License (in which case the definitions of subsections (i) or (ii) shall apply, as applicable), or (b) terminated in accordance with the terms herein.
“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.
“Privacy Notice” means the privacy notice located at https://www.couchbase.com/privacy-policy (and any successor or related locations designated by us), as it may be updated by us from time to time.
“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 Grants.
2.1 License Grant as to Free Licenses. A “Free License” is allowed only for non-production use of the Software and is provided with no Support or any other services. Couchbase is under no obligation to provide or continue to provide the Free Licenses (including any update, upgrade or new version of the Software licensed thereunder). During the Subscription Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Couchbase grants to Customer a revocable, unpaid, non-exclusive, non-transferable, non-sublicensable, non-fee bearing download license to install and use the Software only for Customer’s own internal testing and development use. Prior to using the Software in any Productive Use (as defined below), Customer agrees to enter into an Order with Couchbase and pay the applicable Fees. If, at any time, Customer uses the Software in Productive Use without an active Order, then (i) Customer acknowledges and agrees that its Free License is automatically converted to an Enterprise License, (ii) Couchbase shall have the right to audit and charge Customer for such use as set forth in Section 8 herein, and (iii) Customer shall use best efforts to enter into an Order with Couchbase for such Productive Use in order to remedy the noncompliant Productive Use as soon as possible. Free Licenses granted to Customer hereunder are revocable and terminable at any time in Couchbase’s sole and absolute discretion.
2.2 License Grant as to Enterprise Licenses. An “Enterprise License” is required if Customer makes any “Productive Use” (which means that either (a) the Software is used in production (e.g., in a Production Deployment), or (b) Support is requested by Customer). During the Subscription Term, and subject to Customer’s compliance with the terms and conditions of this Agreement, Couchbase grants to Customer a revocable, 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, Documentation, or Deliverables in any manner except as expressly permitted in this Agreement;
(b) for Enterprise Licenses, 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) for Enterprise Licenses, 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, market, commercialize or sublicense the Software, Documentation, or Deliverables to any third party, provided that Customer may use the Software in connection with an application made available to Customer’s end users as long as they cannot access the Software directly;
(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);
(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, Documentation or Deliverables;
(i) for Enterprise Licenses, 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, Documentation or Deliverables 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. Customer shall comply with all applicable laws in connection with its use of the Software, Deliverables, Professional Services and Support, including but not limited to applicable international and domestic export controls, including economic sanctions, laws, regulations, or orders that apply to Customer, the Software, the Deliverables, the Documentation and any related technology or services (“Export Laws”). In furtherance of this obligation, Customer shall ensure that: (a) Customer does not use the Software, technology or services in violation of any Export Laws; and (b) it does not provide access to the Software, technology or services to (i) persons on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, (ii) military end-users or for military end-use, or (iii) parties engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
3.3 If Customer does not comply with the license terms or the foregoing restrictions, Couchbase may (without refund or credit, if applicable, and without prejudice to any other rights or remedies Couchbase may have under this Agreement or at law), at its sole discretion: (i) terminate this Agreement (including all active Orders and SOWs hereunder) thereby revoking Customer’s Free and/or Enterprise License(s) to the Software and Documentation, or (ii) suspend Customer’s Free and/or Enterprise License(s) to the Software and Documentation until Customer comes into compliance with such terms and restrictions.
3.4 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 This entire Section 4 applies only to Enterprise Licenses fully paid for by Customer and not to Free Licenses.
4.2 The parties may agree to have Couchbase provide Professional Services to Customer, which shall be set forth on an Order or SOW signed by both parties. Such Professional Services shall be governed by the terms and conditions of this Agreement.
4.3 Professional Services and any Deliverables are accepted when delivered unless otherwise set forth in an Order or SOW. Couchbase may engage qualified subcontractors to provide the Professional Services, provided that Couchbase remains responsible for any subcontractor’s compliance with this Agreement. Couchbase grants to Customer a royalty-free, perpetual, non-exclusive, non-transferable, non-sublicensable license to use and reproduce any Deliverables for Customer’s internal business purposes.
4.4 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.
5.1 This Agreement does not transfer any right, title or interest in any intellectual property to any party, except as expressly set forth in this Agreement. The Software (including the source code, any modifications, improvements, enhancements or derivatives thereto), any Deliverables, 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, Deliverables, 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 files, Documentation or materials accompanying the Software.