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 ("CUSTOMER") AGREE TO ALL THE TERMS
OF THIS LICENSE AGREEMENT (THE "AGREEMENT") REGARDING CUSTOMER'S USE OF
THE SOFTWARE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY
TO BIND THE 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. Definitions.
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 datacenters or data repositories.
"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 Devices" means a unique device
(such as a mobile device, laptop, or IoT device) that stores data locally
using the "Couchbase Lite" product.
"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 policy (located 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 Grants.
2.1 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 Customer. During the Subscription Term, and subject to
Customer's compliance with the terms and conditions of this Agreement,
Couchbase grants to Customer an 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. If, at any time, Customer uses the Software in production, or if
Customer requests Support Services, Customer acknowledges and agrees
that the license is automatically converted to an Enterprise License,
which must be paid for.
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, or (b)
Support Services are 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 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. Restrictions.
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; or
(i) export the Software
in violation of U.S. Department of Commerce export administration
rules or any other export laws or regulations.
3.2 If Customer
does not comply with the license terms or the foregoing restrictions,
Couchbase may (without refund or credit) terminate Customer's license
to the Software and Documentation or, at its sole discretion, 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. Services.
4.1 This Section applies only to Enterprise Licenses, but not to Free
Licenses. The parties may agree to have Couchbase provide additional
Professional Services, 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.
5. Proprietary Rights.
5.1 The Software (and any modifications or derivatives 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. Support.
6.1 This Section applies only to Enterprise Licenses,
but not to Free Licenses. 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. Fees.
7.1 This Section applies only to Enterprise Licenses, but
not to Free Licenses. Customer will pay Couchbase the Fee(s) in advance,
unless otherwise indicated in the applicable Order. 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
and are due within thirty (30) days of the date of the invoice, unless
otherwise stated on the invoice. Late payments will bear interest at
the lesser of one and one-half percent (1 1/2%) 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
under this Agreement are:
(a) net amounts and are payable in full,
without deduction for taxes or duties of any kind;
(b) exclusive of,
and Customer is responsible for, all duties and taxes (including Value
Added Tax which shall be paid by Customer, 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; and
(c) non-refundable except
to the extent expressly provided for in this Agreement.
7.3 If
Customer 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). It is expressly agreed that Section 7 shall
apply in respect of any PO sent by Customer and accepted by Couchbase. It
is expressly agreed that this Section 7.3 shall apply in respect of any
PO sent by Customer to Couchbase.
8. Records Retention and Audit.
8.1 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),
and provide Couchbase with such records within ten (10) days of request.
8.2 Upon at least thirty (30) days prior written notice, Couchbase
may audit Customer's use of the Software to solely assess whether Customer
is in compliance with the terms of this Agreement. Any such audit will be
conducted during regular business hours at Customer's facilities and will
not unreasonably interfere with Customer's business activities. Customer
will provide Couchbase with access to the relevant Customer records
and facilities. If an audit reveals that Customer has underpaid fees
to Couchbase, then Couchbase will invoice Customer, and Customer 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 Fee paid by Customer for the Software,
then Customer will also pay Couchbase's reasonable costs of conducting
the audit.
9. Confidentiality.
9.1 Customer and Couchbase will
maintain the confidentiality of Confidential Information. "Confidential
Information" means any proprietary information received by the other
party during, or prior to entering into, this Agreement that a party
should know is confidential or proprietary based on the circumstances
surrounding the disclosure, including the Software and any non-public
technical and business information (including pricing). 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;
or (d) the receiving party rightfully obtains from a third party without
restriction on use or disclosure.
9.2 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.
9.3 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 to the extent required by law
or regulation.
10. DISCLAIMER OF WARRANTY.
10.1 THE SOFTWARE,
DOCUMENTATION AND ANY PROFESSIONAL SERVICES PROVIDED HEREUNDER ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND NEITHER COUCHBASE, ANY
OF ITS AFFILAITES OR LICENSORS (COLLECTIVELY, THE "COUCHBASE PARTIES")
REPRESENT OR WARRANT THAT THE SOFTWARE, DOCUMENTATION OR PROFESSIONAL
SERVICES PROVIDED HEREUNDER WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE
SOFTWARE WILL OPERATE IN THE COMBINATIONS CUSTOMER 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, THE COUCHBASE PARTIES HEREBY DISCLAIM 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. THE COUCHBASE PARTIES DO NOT WARRANT THAT THE
SOFTWARE IS DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE
PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL
OR ENVIRONMENTAL DAMAGE.
11. Indemnification of Third-Party Claims.
11.1 Couchbase Indemnification. Subject to the terms of this Section 11.1,
Couchbase will indemnify and defend Customer from and against any damages
finally awarded against Customer in connection with any third party
claims that the non-open source software components of the Software,
Documentation or Professional Services infringe any valid, enforceable
United States patent, United States copyright, or United States trademark;
provided that: (a) Customer promptly notifies Couchbase of the claim;
(b) Customer gives Couchbase all necessary information regarding the
claim and reasonably cooperates with Couchbase; (c) Customer allows
Couchbase exclusive control of the defense and all related settlement
negotiations; (d) Customer does not admit fault or liability with respect
to this Agreement, any Order, Customers actions or those of Couchbase;
and (e) Customer agrees any damage award does not include any Fees
owed to Couchbase.
11.2 Injunction. Without limiting the forgoing,
and notwithstanding anything to the contrary in this Agreement, if use
of the Software, 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 Software, Documentation or Professional
Services; (ii) replace or modify the affected Software, 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 licenses and
affected Professional Services and in the case of such termination refund
Customer a pro-rata amount of the Fees for the affected Professional
Services.
11.3 Customer Indemnification. Customer will indemnify
and defend Couchbase from and against any damages awarded against
Couchbase in connection with any third party claim that Customer's use,
operation or combination of the Software, including Customer's data or
content, infringe any United States patent, United States copyright or
United States trademark or violates this Agreement; provided that: (a)
Couchbase promptly notifies Customer of the claim; (b) Couchbase gives
Customer all necessary information regarding the claim and reasonably
cooperates with Customer; (c) Couchbase allows Customer exclusive control
of the defense and all related settlement negotiations; (d) Couchbase
does not admit fault or liability with respect to this Agreement, any
Order, Couchbase actions or those of Customer; and (e) Couchbase agrees
any damage award does not include any Fees paid to Couchbase.
11.4
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
Customer 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 Customer's use of the Software other than
in accordance with this Agreement or the applicable Documentation, (vi)
based on Customer'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 Professional Services, (i) based on modifications to the
Professional Services made by a party other than Couchbase, to the
extent a claim would not have occurred but for such modifications,
(ii) based on Customer's use of the Professional Services in violation
of this Agreement, and such use causes such infringement, (iii) based on
infringement resulting from the combination of the Professional Services,
with any hardware, data or software not provided by Couchbase, (iv) based
on Couchbase's compliance with any materials, designs, specifications or
instructions provided by Customer, or (v) based on Customer'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. The Couchbase indemnification
obligations will not apply to any claim to the extent it arises from any
matter for which Customer is obligated to indemnify Couchbase pursuant
to Section 11.3.
11.5 Sole Remedy. THE TERMS OF THIS SECTION 11
CONSTITUTE THE ENTIRE LIABILITY OF COUCHBASE, AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIMS OF INFRINGEMENT
OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
11.6 Applicability. Section 11, excluding 11.3 above, applies only
to Enterprise Licenses, but not to Free Licenses.
12. LIMITATION
OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN
NO EVENT WILL THE COUCHBASE PARTIES BE LIABLE TO CUSTOMER OR TO ANY
THIRD PARTY FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES; OR (B) THE COST OF PROCURING SUBSTITUTE PRODUCTS
OR PROFESSIONAL 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 PROFESSIONAL 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 THE COUCHBASE PARTIES AGGREGATE LIABILITY TO CUSTOMER,
FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE
TOTAL AMOUNT OF FEES PAID OR DUE AND OWING UNDER THE APPLICABLE ORDER(S)
BY CUSTOMER TO COUCHBASE THAT ARE ATTRIBUTABLE TO THE ORDER GIVING RISE
TO LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY. The parties expressly
acknowledge and agree that Couchbase has set its prices and entered into
this Agreement in reliance upon the limitations of liability specified
herein, which allocate the risk between Couchbase and Customer and form a
basis of the bargain between the parties.
13. Term and Termination.
13.1 This Agreement shall begin on the Effective Date and shall apply to
all Orders that reference this Agreement, and shall remain in effect until
terminated by the party sending written notice to the other party. As
to the Software, the "Subscription Term" for Enterprise Licenses shall
begin on the earlier of (a) the Order effective date, or (b) the first
date of Productive Use. The Subscription Term will continue for a period
of time as paid for in an Order. As to Free Licenses, the Subscription
Term begins on the date of download, and lasts until terminated.
13.2 Subject to Couchbase's rights under Section 3 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. Customer'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 any Order or
this Agreement, Customer 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 3-5, 7-14.
14. General.
14.1 Neither party shall be liable for any delay or
failure in performance (except for any payment obligations by Customer)
due to causes beyond its reasonable control.
14.2 Customer agrees
Couchbase may make any news release, public announcement, advertise or
publish the fact of this Agreement. Notwithstanding the above, Couchbase
may use Customer's name and logo with this written consent, consistent
with Customer's trademark policies, on customer lists, so long as such
use in no way promotes either endorsement or approval of Couchbase or
any Couchbase products or services.
14.3 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 foregoing, this Agreement will bind and inure to the benefit of each
party's successors and permitted assigns.
14.4 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.
14.5 All notices
permitted or required under this Agreement shall be in writing and shall
be delivered in person, by confirmed facsimile, overnight courier service
or mailed by first class, registered or certified mail, postage prepaid,
to the address of the party specified upon download or such other address
as either party may specify in writing. Such notice shall be deemed to
have been given upon receipt.
14.6 This Agreement shall be 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 therein. Any amendment or modification to this Agreement must be
in writing signed by both parties.
14.7 This Agreement constitutes
the entire agreement and supersedes all prior or contemporaneous oral
or written agreements regarding the subject matter hereof, including
any agreement on confidentiality previously executed by the parties.
Furthermore, no additional or conflicting terms set forth on any other
document shall have any force or effect and are hereby rejected unless
expressly agreed upon by the parties' duly authorized representatives in
writing. Each of the parties has caused this Agreement to be executed,
accepted and agreed to by its duly authorized representatives as of the
Effective Date. To the extent that any terms and conditions set forth
in an Order conflict with the terms of this Agreement, the applicable
terms of the Order shall prevail.
14.8 Except as expressly set forth
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.
14.9 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.
14.10
Neither party will have the power to bind the other or incur obligations
on the other's behalf without the other's prior written consent.
14.11 Customer has not relied on the availability of any future version of
the Software or any future product in making its decision to enter into
this Agreement.
14.12 This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument. Signatures transmitted
electronically or by facsimile shall be deemed original signatures.
14.13 This Agreement is applicable both to use of the Software without
a signed Order, but also to use of the Software pursuant to any Order
signed by You or Customer.
-----------------------------------------
IMPORTANT CLARIFICATION: If you use any of the Developer Preview
features, the Agreement above does not apply. Instead, the "Developer
Preview Trial License Agreement - Free Edition" solely governs your use
of the Developer Preview features and code.
Developer Preview Trial License Agreement - Free Edition
IMPORTANT-READ CAREFULLY: BY INSTALLING, DOWNLOADING OR OTHERWISE
USING THIS SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, YOU, ON BEHALF
OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY
("LICENSEE") AGREE TO ALL THE TERMS OF THIS DEVELOPER PREVIEW TRIAL
LICENSE AGREEMENT - FREE EDITION (THE "AGREEMENT") REGARDING YOUR 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 INSTALL, DOWNLOAD OR OTHERWISE USE THE SOFTWARE. THE
"EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE ON WHICH YOU FIRST INSTALL,
DOWNLOAD OR USE THE SOFTWARE.
1. License Grant. Subject to Licensee's
compliance with the terms and conditions of this Agreement, Couchbase
Inc. hereby grants to Licensee a, non-exclusive, non-transferable,
non-sublicensable, royalty-free, limited license to install and use the
Software only for Licensee's own internal non-production use for the
purpose of evaluation and/or development.
2. Restrictions. Licensee
will not: (a) copy or use the Software in any manner except as expressly
permitted in this Agreement; (b) [intentionally omitted]; (c) transfer,
sell, rent, lease, lend, distribute, or sublicense the Software 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; (g) alter or remove any proprietary notices in the Software;
(h) make available to any third party the functionality of the Software
or any license keys used in connection with the Software; (i) publicly
display or communicate the results of internal performance testing or
other benchmarking or performance evaluation of the Software; or (j)
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 Inc. may terminate or suspend Licensee's account and access
to the Software until Licensee comes into compliance with such terms and
restrictions.
3. Proprietary Rights. The Software, and any modifications
or derivatives thereto, is and shall remain the sole property of
Couchbase Inc. and its licensors, and, except for the license rights
granted herein, Couchbase Inc. and its licensors retain all right, title
and interest in and to the Software, 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
Inc. will not provide any technical or other product support for the
Software.
5. Confidentiality. Licensee and Couchbase Inc. 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 of this
Agreement. Upon termination or expiration 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.
6. Disclaimer of Warranty. THE SOFTWARE
AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY
OF ANY KIND. COUCHBASE INC. DOES NOT WARRANT THAT THE SOFTWARE OR THE
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. COUCHBASE INC. 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 HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE
PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL
OR ENVIRONMENTAL DAMAGE.
7. Agreement Term and Termination. The term of this Agreement shall
begin on the Effective Date and will continue for the period of time
noted in Section 1 above, at which time both the Agreement and the
license stated herein shall expire. Couchbase Inc. may terminate
this Agreement written notice. Upon termination of this Agreement,
Licensee will, at Couchbase Inc.'s option, promptly return or destroy
(and provide written certification of such destruction) the applicable
Software and all copies and portions thereof, in all forms and types
of media. The following sections will survive termination or expiration
of this Agreement: Sections 2, 3, 5, 6, 7, 8, 9, and 10.
8. Limitation
of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL COUCHBASE INC. OR ITS LICENSORS BE LIABLE TO LICENSEE OR TO
ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS
OR SERVICES ARISING OUT OF OR IN ANY WAY RELATING TO OR IN CONNECTION
WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR
DOCUMENTATION OR THE SERVICES PROVIDED BY COUCHBASE INC. HEREUNDER
INCLUDING, WITHOUT LIMITATION, 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. IN NO EVENT WILL COUCHBASE INC.'S OR ITS LICENSORS'
AGGREGATE LIABILITY TO LICENSEE, FROM ALL CAUSES OF ACTION AND UNDER
ALL THEORIES OF LIABILITY, EXCEED ONE HUNDRED DOLLARS (US $100). The
parties expressly acknowledge and agree that Couchbase Inc. has set its
prices and entered into this Agreement in reliance upon the limitations
of liability specified herein, which allocate the risk between Couchbase
Inc. and Licensee and form a basis of the bargain between the parties.
9. General. Couchbase Inc. shall not be liable for any delay or failure
in performance due to causes beyond its reasonable control. Neither party
will, without the other party's prior written consent, make any news
release, public announcement, denial or confirmation of this Agreement,
its value, or its terms and conditions, or in any manner advertise or
publish the fact of this Agreement. Notwithstanding the above, Couchbase
Inc. may use Licensee's name and logo, consistent with Licensee's
trademark policies, on customer lists so long as such use in no way
promotes either endorsement or approval of Couchbase Inc. or any Couchbase
Inc. products or services. Licensee may not assign this Agreement, in
whole or in part, by operation of law or otherwise, without Couchbase
Inc.'s prior written consent. Any attempt to assign this Agreement,
without such consent, will be null and of no effect. Subject to the
foregoing, this Agreement will bind and inure to the benefit of each
party's successors and permitted assigns. If for any reason a court of
competent jurisdiction finds any provision of this Agreement invalid or
unenforceable, that provision of the 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. All notices permitted or required
under this Agreement shall be in writing and shall be delivered in person,
by confirmed facsimile, overnight courier service or mailed by first
class, registered or certified mail, postage prepaid, to the address
of the party specified above or such other address as either party may
specify in writing. Such notice shall be deemed to have been given upon
receipt. This Agreement shall be 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
(CISG) will not apply. Any legal action or proceeding arising under this
Agreement will be brought exclusively in the federal or state courts
located in the Northern District of California and the parties hereby
irrevocably consent to the personal jurisdiction and venue therein. Any
amendment or modification to the Agreement must be in writing signed
by both parties. This Agreement constitutes the entire agreement and
supersedes all prior or contemporaneous oral or written agreements
regarding the subject matter hereof. No additional or conflicting
terms set forth on any purchase order, order acknowledgement or other
document shall have any force or effect and are hereby rejected unless
expressly agreed upon by the parties' duly authorized representatives
in writing. Each of the parties has caused this Agreement to be executed
by its duly authorized representatives as of the Effective Date. Except
as expressly set forth 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. 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 or incur obligations on the other's behalf
without the other's prior written consent.
10. Definitions. Capitalized
terms used herein shall have the following definitions: "Confidential
Information" means any proprietary information received by the other party
during, or prior to entering into, this Agreement that a party should know
is confidential or proprietary based on the circumstances surrounding the
disclosure including, without limitation, the Software and any non-public
technical and business information. 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; (c) is independently developed
by the receiving party without use of the disclosing party's Confidential
Information; or (d) the receiving party rightfully obtains from a third
party without restriction on use or disclosure. "Documentation" means
any technical user guides or manuals provided by Couchbase Inc. related
to the Software. "Couchbase" means Couchbase, Inc. "Couchbase Website"
means www.Couchbase.com. "Software" means the object code version of the
applicable elastic data management server software provided by Couchbase
Inc. and downloaded by Licensee from the Couchbase Website or otherwise
used by Licensee.
If you have any questions regarding this Agreement,
please contact us at sales@couchbase.com.
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