Capella Cloud Service Subscription Agreement
This Capella Cloud Service Subscription Agreement, the addenda incorporated by reference herein, and, if applicable, the Free Trial Terms and Conditions govern the access and use of the Couchbase, Inc.’s (“Couchbase” or “we”) Capella Cloud Service.
BY CREATING AN ACCOUNT TO USE THE CLOUD SERVICE OR BY USING THE CLOUD SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU REPRESENT AN ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT CREATE AN ACCOUNT AND DO NOT USE THE CLOUD SERVICE.
This Agreement was last updated on October 14, 2021.
1. Definitions.
Capitalized terms used herein shall have the following definitions:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Customer or Couchbase, respectively. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interest in the subject entity.
“Cloud Service” means Couchbase’s database-as-a-service offerings which may be deployed in a Cloud Environment obtained by Couchbase or Customer.
“Clusters” mean any database deployments in the Cloud Service.
“Cloud Control Plane” means the software of the Cloud Service that manages the Data Plane, including the user interface of the Cloud Service.
“Cloud Environment” means the infrastructure-as-a-service cloud environment provided by a third-party cloud services provider into which the Data Plane is deployed.
“Couchbase Privacy Policy” means the Couchbase Privacy Policy available at https://www.couchbase.com/privacy-policy, as updated from time to time.
“Customer” shall mean the entity that the user represents or, if that does not apply, the user individually.
“Customer Content” means all content or data provided by or on behalf of Customer or Authorized Users in the Cloud Service.
“Data Plane” means the components of the Cloud Service that are deployed into the Cloud Environment.
“DPA” means Couchbase’s Data Processing Addendum available at https://www.couchbase.com/CapellaDPA10192021, as updated or amended from time to time.
“Documentation” means any technical documentation provided by Couchbase related to the Cloud Service.
“Fees” means the sums or fees (i) specified on the applicable Order or SOW for Cloud Service and/or Professional Services, (ii) accrued through Customer’s metered usage of the Cloud Service, or (iii) any other fees or charges payable to Couchbase under this Agreement.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, network, or any application or function of any of the foregoing, including the Cloud Service.
“Order” means a transaction document (such as a signed sales quote) identifying Customer’s subscription for the Cloud Service and/or Professional Services, if applicable, along with the applicable Fees and subscription term(s), if any.
“SOW” means a statement of work identifying and describing the Professional Services purchased by Customer and entered into between Couchbase and Customer.
“Subscription Term” means the subscription period set forth in an Order up to and inclusive of any expiration date or, if no period is specified, then the twelve (12) month period starting from the Order effective date.
The term “including” means including but not limited to.
2. Scope.
The terms of this Capella Cloud Service Subscription Agreement, the addenda incorporated by reference herein, any accompanying or future Order or SOW issued hereunder (if any), the DPA, if applicable, and the Free Trial Terms and Conditions, if applicable (collectively, referred to herein as, the “Agreement“) govern Customer’s access to and use of the Cloud Service provided by Couchbase. In the event of any conflict between the terms herein, an Order or SOW, and/or the DPA, if applicable, the following order of precedence will apply (in descending order): (1) the DPA with respect to the processing of personal data, (2) the Order or SOW, and (3) the terms herein, only with respect to such conflict.
3. Access and Use of the Cloud Service.
3.1. Subject to Customer’s compliance with the terms and conditions of the Agreement, Couchbase hereby grants to Customer, and Customer’s internal end users to whom Customer grants access to the Cloud Service (including Customer’s employees and authorized subcontractors using the Cloud Service on behalf of Customer) (collectively, the “Authorized Users”) a limited, non-exclusive, revocable, non-transferable, non-sublicensable and non-assignable, right to access and use the Cloud Service and the Documentation within the service plan purchased solely for Customer’s and its Affiliate(s’) (if such Affiliate(s) are authorized in an Order), own internal use.
3.2. Use of the Cloud Service requires Customer and/or its Authorized Users to each create a user account, which may require Customer and Authorized Users to provide a username, password and other login credentials (“Registration Information”). Customer is responsible for confirming any such Registration Information is complete and accurate and kept up-to-date. By providing Registration Information, Customer and any Authorized Users hereby consent to receive email communications from Couchbase. Customer is and shall remain responsible and liable for all activities that occur under Customer’s and Authorized Users’ Registration Information or as a result of Customer’s or Authorized Users’ access to the Cloud Service. Customer shall notify Couchbase immediately of any unauthorized use. Without limiting Customer’s obligations under the Agreement, Couchbase reserves the right to reset or terminate any Registration Information or account credentials if Couchbase suspects any unauthorized access or use. Customer shall ensure that its Authorized Users comply with all terms and conditions of the Agreement and Customer is responsible and liable to Couchbase for any breach of the Agreement by any Authorized User.
3.3. Customer shall allow Couchbase to upgrade to the most current generally available releases of the Cloud Service applicable to Customer’s deployments. Customer acknowledges that Couchbase, in its sole discretion, may make improvements, changes and updates to the Cloud Service and the Documentation at any time.
4. Customer Restrictions. Except as otherwise expressly permitted in the Agreement, Customer shall not, shall not attempt to, or permit any third party (including any Authorized User) to: (a) access or use the Cloud Service and/or Documentation in any manner except as expressly permitted in the Agreement; (b) transfer, sell, rent, lease, lend, distribute, resell, sublicense, market, assign, publish, download, disclose or otherwise make available any part of the Cloud Service and/or Documentation to any third party; (c) circumvent, interfere with or endanger the operation or security of the Cloud Service and/or Documentation, including any measures designed to monitor or prevent use of the Cloud Service in contravention of the Agreement, or otherwise input, upload, transmit or otherwise provide to or through the Cloud Service any information or materials that are unlawful or injurious, or that contain, transmit or otherwise activate any Harmful Code or otherwise are intended to abuse the Cloud Service; (d) conduct penetration or performance tests of the Cloud Service; (e) access or use the Cloud Service to provide services to third parties (such as for 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 Cloud Service); (f) access or use the Cloud Service and/or Documentation for the purposes of benchmarking or competitive analysis of the Cloud Service, or developing, using, providing, or supporting products or services competitive to Couchbase; (g) alter, modify, adapt, translate, enhance, reverse engineer, disassemble, decompile or prepare any derivative work from or of the Cloud Service or Documentation, or otherwise derive or determine or attempt to derive or determine the source code or other proprietary information or trade secrets from the Cloud Service or Documentation except where prohibited; (h) remove, delete, efface, obscure or otherwise alter any Couchbase proprietary notices, trademarks, warranties or disclaimers in or relating to the Cloud Service or Documentation; (i) access or use the Cloud Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person or entity, or that violates any applicable law, including the disclosure or transmission of content or data contained in the Cloud Service or Documentation in such a manner or for such a purpose; or (j) revoke or otherwise limit Couchbase’s access to the Cloud Environment (including any Cluster(s)) or do anything else to limit Couchbase’s ability to monitor Customer’s Cluster(s) or otherwise provide the Cloud Service.
5. Shared and Customer Obligations.
5.1. General. The parties acknowledge that each party must undertake certain technical and organizational measures in order to protect the Cloud Service and the Customer Content. Customer acknowledges and agrees that Customer (and its Authorized Users) has sole control and responsibility to choose the appropriate deployment of the Data Plane in Customer’s Cloud Environment or a Couchbase controlled Cloud Environment by making the relevant selection in the Control Plane in creating a Cluster. As to Clusters deployed in Customer’s Cloud Environment, the parties acknowledge and agree that Couchbase does not host Customer’s Cloud Environment into which the Data Plane is deployed or the systems in which Customer Content may be stored. Couchbase is not responsible for any loss, destruction, alteration, or corruption of Customer Content, except to the extent caused by the gross negligence or willful misconduct of Couchbase.
5.2. Customer Responsibilities. Customer acknowledges and agrees that in order to utilize the Cloud Service, Customer is responsible for:
(a) Generally, (i) selecting the appropriate Cloud Environment; (ii) protecting the confidentiality and security of all Registration Information used to access the Cloud Service by Customer or any Authorized User; (iii) implementing and maintaining appropriate technical and security measures to protect Customer Content against unauthorized or unlawful processing, and against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access; (iv) not interfering with, and, if necessary, taking steps to enable, updates to the Cloud Service to ensure Customer is using the latest generally available version of the Cloud Service; (v) implementing and maintaining the appropriate configurations of the Cloud Service to enable the backup services and disaster recovery features of the Cloud Service required for purposes of recovering Customer Content; (vi) properly securing and maintaining any Customer system connected to the Cloud Service (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access); and (vii) notifying Couchbase immediately if Customer believes there has been unauthorized access to or activity with respect to the Cloud Environment or Cloud Service.
(b) Where the Cloud Service is implemented in a manner that divides the Cloud Service between the Data Plane deployed in Customer’s Cloud Environment and the Cloud Control Plane: (i) procuring its Cloud Environment through a third-party cloud services provider, including the provisioning, maintenance, or hosting of such Cloud Environment at Customer’s sole cost and expense, and (ii) properly maintaining and securing Customer’s Cloud Environment connected to the Cloud Service (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access).
5.3. Security. Couchbase will implement and maintain technical organizational security measures. The current technical and organizational security measures are described at Annex B of the DPA.
6. Customer Content.
6.1. Customer hereby grants to Couchbase a limited, non-exclusive, royalty-free, worldwide right and license to use, display, host, copy, process, archive, and transmit any and all Customer Content or other data provided by Customer in connection with any Support (“Support Content,” together with Customer Content, the “Service Content”) to provide and improve the Cloud Service in accordance with the Agreement. Couchbase may use an aggregated and de-identified version of the Service Content for its internal business purposes.
6.2. Customer represents and warrants and shall ensure that it has the right to provide the above right and license and that neither the Service Content itself nor its use by Couchbase for purposes under the Agreement shall violate any applicable law or infringe, misappropriate or otherwise violate any rights of any third party, including intellectual property rights, privacy rights and other rights under contract or law.
6.3. Customer represents and warrants that it shall not transmit to Couchbase, in connection with the Cloud Services, any Service Content that includes any Personal Data (as defined in the DPA) that constitutes: (a) employment, genetic, biometric or health information (including “protected health information" as defined under the Health Insurance Portability and Accountability Act) or similar laws; (b) "personal information" about individuals under the age of thirteen (13) as such term is defined under the Children's Online Privacy Protection Act or similar law; (c) government issued identification numbers, including social security numbers, driver's license numbers and other state-issued identification numbers; (d) cardholder or sensitive authentication data, as those terms are defined in the Payment Card Industry Data Security Standards, or financial account information, including bank account numbers (other than such data necessary to pay for any amounts payable to Couchbase in connection with the Cloud Services); (e) the combination of a username or email address along with a password or security question and answer that would permit access to an online account (except for Registration Information); (f) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other personal data governed by Article 9 of the European Union General Data Protection Regulation; (g) personal data relating to criminal history; or (h) any other information or combinations of information that falls within the definition of “special categories of data” under European Data Protection Laws or any other Applicable Data Protection Laws. If any such Service Content is inadvertently transmitted to Couchbase, Customer acknowledges and agrees that it shall cooperate with Couchbase to securely delete such Service Content.
6.4. With respect to any Personal Data (as defined in the DPA) processed by Couchbase in connection with providing the Cloud Service, Couchbase shall comply with the DPA. With respect to any Personal Data obtained by Couchbase as a controller, Couchbase shall comply with the Couchbase Privacy Policy. The DPA and the Couchbase Privacy Policy are hereby incorporated into the Agreement.
7. Professional Services.
7.1. The parties may agree that Couchbase shall provide consulting services (which may result in reports, recommendations, or other deliverables) and training as expressly identified in the applicable Order or SOW (collectively, the “Professional Services”) signed by both parties. Couchbase will render the Professional Services on a commercially reasonable basis in a professional and workmanlike manner in accordance with the terms and conditions of the Agreement and the applicable Order or SOW.
7.2. Unless explicitly set forth in an Order or SOW, any Professional Services purchased under the Agreement shall expire upon the end of the applicable Subscription Term. Any unused Professional Services after the end of such 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 the 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.
8. Support and Service Levels. Except for any Beta Service, Free Trials or as otherwise set forth in the Agreement, Couchbase will (i) provide Customer with the level of the technical support within Customer’s service plan as described at https://www.couchbase.com/support-policy/cloud, as updated from time to time (hereinafter, the “Support”), selected by Customer through the Cloud Control Plane or in an Order and paid for by Customer, and (ii) use commercially reasonable efforts to meet or exceed the service levels for Customer’s service plan set forth in the then-current service level agreement available at https://www.couchbase.com/CapellaSLA, as updated from time to time (the “Service Level Agreement”). For prepaid Credit subscriptions, Support expires at the earlier of the consumption or expiration of the prepaid Credits, and the service plan entitlement shall only accompany the prepaid Credits purchased in the same Order as the applicable service plan. For On-Demand Credits, Support is available for so long as Customer pays for On-Demand Credits and expires upon termination of the On-Demand Credits in accordance with this Agreement. In connection with Support, Couchbase may require remote access to the Cloud Service that will enable it to receive performance and operational data and information directly from the Cloud Service regarding technical operations of the Cloud Service. Couchbase will only use such data and information for the purposes of providing the Cloud Services and Support, and in aggregate form for the purposes of improving the Cloud Service.
9. Beta Services. From time to time and at Couchbase’s sole discretion, Customer may participate in certain test, alpha, beta, free and trial versions of the Cloud Service (“Beta Services”) at no additional charge in its sole discretion, subject to the restrictions generally applicable to the Cloud Service and any additional requirements set forth by Couchbase. The Beta Services are provided without Support or any servicing obligations, and may contain bugs and other functional issues. BETA SERVICES ARE PROVIDED AS-IS AND WITHOUT ANY WARRANTY OR INDEMNITY. Couchbase, its Affiliates and/or licensors will not be liable for any harm or damages related to Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Couchbase may discontinue Beta Services at any time in its sole discretion and is under no obligation to make such Beta Services generally available.
10. Proprietary Rights.
10.1. Couchbase and its licensors retain all right, title and interest in and to the Cloud Service (including any and all improvements, enhancements or modifications thereto), all the Documentation and Professional Services, including all intellectual property rights therein, and nothing in this Agreement will be construed as conferring by implication, acquiescence, estoppel, or otherwise, any license or other right upon Customer.
10.2. The Cloud Service 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 related to the Cloud Service.
10.3. Except as expressly stated in Section 6, Customer retains all right, title and interest in and to the Customer Content, including all intellectual property rights therein.
10.4. Couchbase may use any data, feedback or information that Customer makes available to Couchbase or that Couchbase derives or generates from Customer’s use of the Cloud Service or the Documentation (“Feedback”) without obligation to Customer and Customer hereby irrevocably assigns to Couchbase all right, title, and interest in and to the Feedback.
10.5. 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.
11. Fees, Payment Terms and Taxes.
11.1. Fees. Customer may subscribe to a service plan of the Cloud Service via an Order or other methods made available by Couchbase and shall pay Couchbase the applicable Fees in accordance with this Section 11 and the description of fees and charges available at https://www.couchbase.com/CapellaServiceFees10192021 which is incorporated by reference herein.
11.2. Calculation of Fees. Couchbase calculates and invoices Fees and charges based on: (a) Customer’s metered use of the Cloud Service as described on the site specific to the Cloud Service Customer is using; (b) as agreed between Couchbase and Customer as set forth in an Order; or (c) as applicable, in accordance with Couchbase’s then-current list prices. Couchbase reserves the right to increase its fees and charges with at least thirty (30) days’ prior notice provided electronically through the Cloud Service or a comparable means.
11.3. Payment Terms. Unless otherwise agreed between Customer and Couchbase, all payments of Fees under this Agreement shall be in USD and paid using one of the payment methods supported by Couchbase. Couchbase may issue invoices to Customer via email or in the form accessible via the Cloud Control Plane. Couchbase is not required to send invoices to any other billing or invoicing portal. Unless otherwise stated in the applicable Order or SOW, Customer shall pay for all invoices issued by Couchbase to Customer under this Agreement within thirty (30) days of the date of the invoice, even if such invoice does not provide a Customer purchase order number. For multi-year deals, Customer shall have remitted (and Couchbase shall have received) payment of the applicable annual Fees on or before the Subscription Term anniversary. For invoiced amounts, late payments may, in Couchbase’s discretion, bear interest at the lesser of one and one half percent (1½%) per month or the maximum rate allowed by applicable law, and Customer shall reimburse Couchbase for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts. All amounts paid and payable by Customer under this Agreement are non-cancelable and non-refundable, and shall be paid to Couchbase without setoff or counterclaim, and without any deduction or withholding. If Customer purchases licenses or services related to the Cloud Service through an approved third-party partner, then the applicable agreement with that third-party will govern with respect to Customer for the appropriate payment terms, provided that such third-party agreement shall not override or attempt to override the payment terms in place between Couchbase and such approved third-party partner. All other terms and restrictions with respect to the use of the Cloud Service shall continue to apply to Customer.
11.4. Taxes. 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.
12. Records and Audits.
12.1. Records and Inspection. Customer shall: (a) maintain complete and accurate books and records of all Customer’s activities under this Agreement, to enable Couchbase to verify Customer’s compliance with this Agreement; and (b) provide Couchbase with such books and records within ten (10) days of Couchbase’s request, for Couchbase’s inspection to verify Customer’s compliance with this Agreement.
12.2. Audits. Upon at least thirty (30) days prior written notice, but no more than once in any twelve (12) month period, Couchbase may audit Customer’s use of Cloud Service to verify whether Customer is in compliance with the terms of this Agreement. Any such audit will be conducted during regular business hours and may be conducted remotely or at Customer’s facility and will not unreasonably interfere with Customer’s' business activities. Customer shall provide Couchbase with access to the relevant records and facilities. Couchbase retains the right to audit the Customer for one (1) year after termination of this Agreement.
12.3. Third Party Auditors. Any inspections or audits under Section 12.1 (Records and Inspections) or 12.2 (Audits) may be conducted by Couchbase or an independent certified public accountant reasonably acceptable to both parties.
13. Confidentiality.
13.1. Customer and Couchbase will maintain the confidentiality of the other party’s Confidential Information. “Confidential Information” means any proprietary information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) during, or prior to entering into, this Agreement that Receiving Party should know is confidential or proprietary based on the nature of the information and circumstances surrounding the disclosure, including non-public technical information, business information (including pricing), roadmaps, benchmarks, non-public security measures and reports. 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; (d) the Receiving Party rightfully obtains from a third party without restriction on use or disclosure; or (e) usage data derived by Couchbase from Customer’s use of the Cloud Services provided that such data is anonymized and aggregated.
13.2. The Receiving Party of any Confidential Information of the Disclosing 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 will 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 will use less than reasonable care.
13.3. 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 only to the extent required by law or regulation.
14. DISCLAIMER OF WARRANTY. THE CLOUD SERVICE, DOCUMENTATION AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COUCHBASE PARTIES DO NOT REPRESENT OR WARRANT THAT THE CLOUD SERVICE, DOCUMENTATION OR PROFESSIONAL SERVICES PROVIDED WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE CLOUD SERVICE OR DOCUMENTATION WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY INFORMATION OR ADVICE GIVEN BY THE COUCHBASE PARTIES WILL CREATE ANY WARRANTY. THE COUCHBASE PARTIES (A) DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THE CLOUD SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, (B) ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS, AND (C) ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE CLOUD SERVICE THAT ARISE FROM CUSTOMER OR THIRD-PARTY CONTENT (AS DEFINED HEREIN). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COUCHBASE PARTIES HEREBY DISCLAIM ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AVAILABILITY, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
15. Indemnification.
15.1. Customer Indemnification. Customer shall indemnify and defend the Couchbase Parties from and against any claims, proceedings, liabilities, costs or damages arising out of or in connection with any third-party claim concerning: (i) Customer’s or any Authorized User’s use of or access to the Cloud Service, Support, or Cloud Environment; (ii) violation of third party rights (including without limitation any intellectual property rights) arising out of or relating to Customer Content; (iii) breach of this Agreement or applicable law by Customer or an Authorized User; (iv) any use, or inability to use the Cloud Service or any component thereof by any third party that receives or obtains access to or relies on the Cloud Service from or through (directly or indirectly) the Customer or any Authorized User, and (v) any negligent or willful conduct by Customer or Authorized Users. Couchbase will: (a) promptly notify Customer of the relevant claim; (b) give Customer all necessary information regarding the claim and reasonably cooperate with Customer; (c) allow Customer exclusive control of the defense and all related settlement negotiations, provided that Couchbase may participate in the defense and related settlement negotiations with counsel of its own choosing; and (d) not admit fault or liability on behalf of Customer.
15.2. Enjoinment. Without limiting the forgoing, and notwithstanding anything to the contrary in this Agreement, if use of the Cloud Service, Documentation or Professional Services are enjoined, or Couchbase determines that such use may be enjoined, Couchbase will, at its sole option and expense, (i) procure for Customer the right to continue using the affected portion of the Cloud Service, Documentation or Professional Services; (ii) replace or modify the affected portion of the Cloud Service, Documentation or Professional Services that infringe so that they do not infringe; or (iii) if either option (i) or (ii) is not commercially feasible in Couchbase’s reasonable opinion, as applicable, terminate the Cloud Service and affected Professional Services and in the case of such termination refund Customer a pro-rata amount of the Fees for the affected portion of the Cloud Service or Professional Services.
15.3. Exclusions. Under no circumstance will Couchbase incur any liability for: (i) Customer’s failure to use the Cloud Service in accordance with this Agreement; or (ii) the Cloud Service being modified by Customer or a third party; (iii) the use, operation or combination of the Cloud Service with software, services, technology, content, data, equipment or materials not provided by Couchbase.
15.4. Exclusive Remedy. The terms of this Section 15 constitute the entire liability of Couchbase and Customer’s sole and exclusive remedy under the Agreement with respect to this Section 15.
16. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL: (A) THE COUCHBASE PARTIES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, CUSTOMER’S USE OF OR INABILITY TO USE THE CLOUD SERVICE, DOCUMENTATION, OR THE PROFESSIONAL SERVICES IN ACCORDANCE WITH AND SUBJECT TO THIS AGREEMENT; AND (B) THE COUCHBASE PARTIES’ AGGREGATE LIABILITY TO CUSTOMER FOR ALL LOSSES, CLAIMS AND DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER FOR THE CLOUD SERVICE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY. All limitations and exclusions of liability in this Agreement will apply even if the above stated remedies fail of their essential purpose and regardless of the form or source of claim or loss, whether the claim or loss was foreseeable, and whether the Couchbase Parties have been advised of the possibility of the claim or loss.
17. Term and Termination.
17.1. Term. Unless otherwise stated in an Order, this Agreement is effective as of the date of Customer’s acceptance of this Agreement and will continue until terminated in accordance with this Agreement.
17.2. Termination. Subject to Couchbase’s rights under Section 17.4 below, either party may terminate an Order, SOW or 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. Customer’s obligation to make a payment of any outstanding, unpaid fees shall survive termination of an Order, SOW or this Agreement. This Agreement shall automatically terminate without notice to Customer after 90 days from the expiration of the last to expire Order or SOW in effect hereunder.
17.3. Suspension of Cloud Service. Notwithstanding anything in the Agreement to the contrary, Couchbase may suspend or terminate any Cloud Service subscription and delete any Customer Content (including back up data) relating to such account that may be stored within the Cloud Service (i) immediately without notice if necessary to preserve Couchbase’s rights or Couchbase reasonably determines that Customer or any Authorized User of the Cloud Service threatens the security, integrity or availability of the Cloud Service or otherwise breaches applicable laws or regulations, or (ii) on written notice if Customer fails to comply with Section 11 (Fees, Payment Terms and Taxes) or if Customer’s use of the Cloud Service exposes Couchbase or its partners to third-party liability. Additionally, Couchbase may suspend Cloud Service access for any modifications or other scheduled maintenance. If commercially feasible, Couchbase will provide advance notice of any such suspension and limit any suspension to the minimum extent and duration required. Customer will remain responsible for all Fees and charges Customer has incurred up to and during any period of suspension of the Cloud Service and will not be entitled to any credit or refund. Couchbase will use commercially reasonable efforts to restore Customer’s access to the Cloud Service promptly following resolution of the cause of Customer’s suspension.
17.4. Effect of Termination. Upon termination or expiration of all active Orders (including termination under Section 17.3), SOWs or this Agreement, Customer shall (i) immediately discontinue the use of all Clusters and the Cloud Service, (ii) delete the Customer account information (including all Authorized User accounts associated with Customer in the Cloud Control Plane), (iii) uninstall the Cloud Service in accordance with the termination instructions in the Cloud Control Plane, (iv) promptly return or destroy (and provide written certification of such destruction) the Documentation and deliverables and all copies and portions thereof, in all forms and types of media, (v) immediately pay any outstanding Fees owed by Customer upon receipt of the final invoice. Couchbase shall have no obligation to store (and may irretrievably destroy) Customer Content (including backup data) after termination or expiration of the relevant Order, SOW or the Agreement. The following Sections will survive termination or expiration of this Agreement: 4, 6.2, 9, 10, 11 to 18 (inclusive) and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement.
18. General.
18.1. Export Compliance. The Cloud Service and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Couchbase and Customer each represent that it is not named on any U.S. government denied-party list. Customer shall comply with all applicable international and domestic export and economic sanctions laws or regulations that apply to Customer, the Cloud Service and any related technology or services. In furtherance of this obligation, Customer shall ensure that: (a) Customer’s Authorized Users do not use the Cloud Service or Professional Services in violation of any export restriction or embargo issued by the United States; and (b) it does not provide access to the Cloud Service or Professional 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. This provision shall survive termination of the Agreement.
18.2. Force Majeure. Neither party will be liable for any delay or failure in performance (except for any payment obligations by Customer) due to causes beyond its reasonable control.
18.3. Publicity. Customer agrees that Couchbase may include the Customer’s name and logo in client lists that Couchbase may publish for promotional purposes from time to time and grants Couchbase a limited license to its trademark solely for this purpose, provided that Couchbase complies with Customer’s branding guidelines.
18.4. Assignment. Customer may not assign this Agreement, in whole or in part, by operation of law or otherwise, without Couchbase’s prior written consent. Any attempt to assign this Agreement without such consent will be null and of no effect. Subject to the previous sentence, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
18.5. Severability and Waiver. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. All waivers must be in writing and signed by both parties.
18.6. Notices. Any notice or communication provided by Couchbase under this Agreement may be provided by posting a notice on the Couchbase website, or by mail or email to the relevant address associated with Customer’s Cloud Service account. Any notice or communication provided by Customer under the Agreement shall be provided to Couchbase by certified mail, return receipt requested, to Couchbase Inc, Attn: Legal Dept, 3250 Olcott Street, Santa Clara, CA 95054, United States.
18.7. Governing Law and Venue. This Agreement is governed by the laws of the State of California, U.S.A., excluding its conflicts of law rules. The parties expressly agree that the UN Convention for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue there.
18.8. Entire Agreement and Amendments. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding its subject matter, including any agreement on confidentiality previously executed by the parties. Furthermore, no additional or conflicting terms stated on any other document will have any force or effect and are hereby rejected unless expressly agreed upon by the parties’ duly authorized representatives in writing. Except as otherwise set forth in this Agreement or any Order, Couchbase may modify the Agreement (including the Support terms and Service Level Agreement) at any time by posting a revised version at Couchbase’s website at https://cloud.couchbase.com or the applicable website used to provide the Cloud Services, or by otherwise notifying Customer in accordance with Section 18.6. By continuing to use the Cloud Service after the effective date of any such modifications to this Agreement, Customer agrees to be bound by the Agreement, as modified. The date Couchbase last modified this Agreement is set forth at the beginning of the Agreement. Notwithstanding the foregoing, any Orders placed under this version of the Agreement may only be modified by a mutually signed amendment by the parties.
18.9. No Prejudice. Except as expressly stated in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
18.10. Relationship of the Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
18.11. Future Functionalities. Customer has not relied on the availability of any future version of the Cloud Service or any future product in making its decision to enter into this Agreement.