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 AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY (“LICENSEE”) AGREE TO ALL THE TERMS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”) REGARDING YOUR AND LICENSEE’S USE OF THE SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND THE LICENSEE 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.
1A. License Grant as to Free Licenses. A “Free License” is allowed for non-production use of the Software, provided that no Support Services are entitled to Licensee. During the Subscription Term, and subject to Licensee’s compliance with the terms and conditions of this Agreement, Couchbase grants to Licensee an unpaid, non-exclusive, non-transferable, non-sublicensable, non-fee bearing download license to install and use the Software only for Licensee’s own internal testing and development use. If, at any time, Licensee uses the Software in production, or if Licensee requests Support Services, Licensee acknowledges and agrees that the license is automatically converted to an Enterprise License, which must be paid for.
1B. License Grant as to Enterprise Licenses. An “Enterprise License” is required if Licensee makes any “Productive Use” (which means that either (a) the Software is used in production, or (b) Support Services are requested by Licensee). During the Subscription Term, and subject to Licensee’s compliance with the terms and conditions of this Agreement, Couchbase grants to Licensee either i) 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 (and if stated in the Order, the number of Licensed Devices 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 Licensed Devices 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 and such third party components shall be licensed to Licensee 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. 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. This Section applies only to Enterprise Licenses, but not to Free Licenses. Couchbase offers several levels of Support Services for the Software. Couchbase will provide Licensee with the level of Support indicated on the applicable Order and paid for by Licensee. 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). When using the Cross Data Center Replication feature, Licensee 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.
5. Payments. This Section applies only to Enterprise Licenses, but not to Free Licenses. 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 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 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).
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 Licensed Devices 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. COUCHBASE DOES NOT WARRANT THAT THE SOFTWARE IS DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE.
9. Indemnification of Third Party Claims.
- Couchbase 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 non-open source software components of the Software, Documentation or Services infringe any United States patent, or United States copyright, or United States trademark; 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 exclusive control of the defense and all related settlement negotiations.
- Licensee Indemnification.
Licensee will indemnify and defend Couchbase from and against any damages finally awarded against Couchbase in connection with any third party claim that Licensee’s use, operation or combination of the Software, including Licensee’s data or content, infringe any United States patent, United States copyright or United States trademark or violates this Agreement.
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.
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, (v) to the extent based on Licensee’s use of the Software other than in accordance with this Agreement or the applicable Documentation, (vi) based on Licensee’s continued allegedly infringing activity after being notified thereof or after being provided a replacement or modifications by Couchbase that would have avoided the alleged infringement; 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, (iii) based on infringement resulting from the combination of the Services, with any hardware, data or software not provided by Couchbase, (iv) based on Couchbase’s compliance with any materials, designs, specifi