COUCHBASE, INC. LICENSE AGREEMENT
IMPORTANT--READ CAREFULLY: BY CLICKING THE "I ACCEPT" BOX OR INSTALLING,
DOWNLOADING OR OTHERWISE USING THE SOFTWARE AND ANY ASSOCIATED
DOCUMENTATION, YOU, ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED
REPRESENTATIVE ON BEHALF OF AN ENTITY (COLLECTIVELY, "CUSTOMER"),
AGREE TO ALL THE TERMS OF THIS LICENSE AGREEMENT AND, IF APPLICABLE,
THE NON-GA OFFERING SUPPLEMENTAL TERMS (COLLECTIVELY, THE "AGREEMENT")
REGARDING CUSTOMER'S USE OF THE SOFTWARE. YOU REPRESENT AND WARRANT THAT
YOU HAVE FULL LEGAL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF
YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT SELECT THE "I ACCEPT"
BOX AND DO NOT INSTALL, DOWNLOAD OR OTHERWISE USE THE SOFTWARE. THE
EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK "I ACCEPT"
OR OTHERWISE INSTALL, DOWNLOAD OR USE THE SOFTWARE.
1. Definitions.
1.1 Capitalized terms used herein shall have the following definitions:
"Commercial Details" means the identified products and/or services,
quantity (number of Licensed Nodes, Licensed Devices, and/or service
entitlements), price, server size, support level, subscription start
and end date, and Professional Services description.
"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.
"Cross-Data Center Replication" means an asynchronous data replication
system, involving replicating active data to multiple, geographically
diverse data centers or data repositories.
"Customer" means the person, legal entity or organization, as
applicable, accepting the terms and conditions hereunder and/or
entering into an Order that references this Agreement.
"Deployment" means all Licensed Nodes and Licensed Devices within
a particular workload or application. "Documentation" means the
technical user guides or manuals provided by Couchbase related to
the Software.
"Fees" means any sums, fees or charges specified on an Order or
otherwise payable under this Agreement.
"Licensed Device" means a unique device (such as a mobile device,
laptop, or IoT device) that stores data locally using the "Couchbase
Lite" product during a rolling thirty (30) day period.
"Licensed Node" means an instance of the Software running on a server,
including a physical server, server blade, virtual machine, software
container, or cloud server (whether in a testing, development,
production, or other environment).
"Order" means a transaction document (such as a signed sales quote or
statement of work) identifying the applicable Professional Services,
Software, number of Licensed Nodes and Licensed Devices, Fees and
Subscription Term.
"Privacy Notice" means the privacy notice located at
https://www.couchbase.com/privacy-policy (and any successor location
designated by Couchbase), as may be updated from time to time.
"Professional Services" means consulting services, training,
and other professional services as well as the resulting reports,
written materials, or other outputs provided to Customer as part of
an engagement as identified in the applicable Order.
"RAM" or Random Access Memory, means the main memory used to store
data for quick access by a computer's processor.
"Software" means the applicable Couchbase product either (i)
as reflected in an Order or (ii) as otherwise made available to
Customer under this Agreement.
"Subscription Term" means, as applicable: (i) the period stated
on an Order, if any, during which Customer is licensed to use the
Software and Documentation and receive the Professional Services (if
applicable) and Support; (ii) the first date an Enterprise License is
required (including before an Order is signed) until the date such
Enterprise License is either (a) memorialized in an Order (in which
case the definition of subsection (i) herein shall apply), or (b)
terminated in accordance with the terms herein; or (iii) the date
of download for a Free License until the date such Free License is
either (a) converted into an Enterprise License (in which case the
definitions of subsections (i) or (ii) shall apply, as applicable),
or (b) terminated in accordance with the terms herein.
"Support" means the technical support and Software maintenance
services (with the right to receive Software updates and upgrades made
generally available by Couchbase) as described in the then-current
Couchbase support services terms at www.couchbase.com/support-policy
(and any successor location designated by Couchbase), as may be
updated from time to time.
The term "including" means including but not limited to.
2. License Grants.
2.1 License Grant as to Free Licenses. A "Free License" is allowed only
for development use and evaluation of the Software and is provided with
no Support or any other services. Couchbase is under no obligation to
provide or continue to provide the Free Licenses (including any update,
upgrade or new version of the Software licensed thereunder). During
the Subscription Term, and subject to Customer's compliance with the
terms and conditions of this Agreement, Couchbase grants to Customer a
revocable, unpaid, non-exclusive, non-transferable, non-sublicensable,
non-fee bearing download license to install and use the Software only
for Customer's own internal development use and evaluation of the
Software. Prior to using the Software for any other use (including
for testing, quality assurance, or in production), Customer agrees to
enter into an Order with Couchbase and pay the applicable Fees. If,
at any time, Customer uses the Software for any other use (including
for testing, quality assurance, or in production) without an active
Order, then (i) Customer acknowledges and agrees that its Free License
is automatically converted to an Enterprise License, (ii) Couchbase
shall have the right to audit and charge Customer for such use as set
forth in Section 8 herein, and (iii) Customer shall use best efforts to
enter into an Order with Couchbase for such use in order to remedy the
noncompliant use as soon as possible. Free Licenses granted to Customer
hereunder are revocable and terminable at any time in Couchbase's sole
and absolute discretion.
2.2 License Grant as to Enterprise Licenses. An "Enterprise License"
is required if Customer uses the Software (a) for testing, quality
assurance, or in production, (b) for any use other than solely
for internal development use or evaluation of the Software, or (c)
after Customer's initial request for Support. After Customer in the
first instance uses the Software for testing, quality assurance,
or in production, or converts to an Enterprise License otherwise,
then the Enterprise License terms of this Agreement (absent another
applicable enterprise agreement between the parties) shall apply. During
the Subscription Term, and subject to Customer's compliance with the
terms and conditions of this Agreement, Couchbase grants to Customer a
revocable, non-exclusive, non-transferable, non-sublicensable (except
as explicitly set forth herein), fee-bearing license to install and
use the Software and Documentation only for Customer's own internal
use and limited to the type, size, and number of Licensed Nodes and
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.
2.3 Tools, Connectors, and Third Party Products. The Software may:
(i) include certain components developed and owned by Couchbase
("Couchbase Components") which connect to products, components, files,
programs, databases, content sources or other materials developed and
owned by third parties ("Third Party Products"); and (ii) include or
be distributed with Third Party Products. Customer's use of Couchbase
Components and Third Party Products may be subject to additional terms
and conditions and third party license terms, including as set forth
in Exhibit A of this Agreement. Further, Third Party Products may be
subject to third party licenses provided by such third party or executed
between Customer and such third party (in each case, a "Third Party
License"). Couchbase has not developed or published and does not own,
control or license such Third Party Products. Customer shall be solely
responsible for (i) its compliance with any such Third Party License
in its use of any Third Party Products and (ii) the confidentiality,
security, and integrity of any content or data Customer chooses
to transfer to any Third Party Products. Couchbase shall have no
responsibility or liability whatsoever for the installation, operation,
or support functionality of, or otherwise related to or arising out
of any Third Party Products, including any loss or compromise of data.
3. Customer Responsibilities.
3.1 Customer shall not (and shall not allow any third party to):
(a) copy or use the Software, Documentation, or any related reports,
technologies or services in any manner except as expressly permitted
in this Agreement;
(b) for Enterprise Licenses, use or deploy the Software in excess of
the number of Licensed Nodes and Licensed Devices for which Customer
has paid the applicable Fees;
(c) for Enterprise Licenses, use or deploy the Software in excess
of the number of Cores and RAM for each Licensed Node for which
Customer has paid the applicable Fees;
(d) transfer, sell, rent, lease, lend, distribute, market,
commercialize or sublicense the Software, Documentation, or any
related reports, technologies or services to any third party,
provided that Customer may use the Software in connection with an
application made available to Customer's end users as long as they
cannot access the Software directly;
(e) use the Software for providing time-sharing services, service
bureau services or as part of an application services provider or
as a service offering primarily designed to offer the functionality
of the Software;
(f) reverse engineer, disassemble, or decompile the Software (except
to the extent such restrictions are prohibited);
(g) alter, modify, enhance or prepare any derivative work from or
of the Software and Documentation;
(h) alter or remove any proprietary notices in the Software,
Documentation or any related reports, technologies or services;
(i) for Enterprise Licenses, use or transfer Licensed Nodes and/or
Licensed Devices designated to a particular Deployment or project
to another or new Deployment or project; or
(j) use the Software, Documentation or any related reports,
technologies or services for the purposes of, or publicly display or
communicate the results of, benchmarking or competitive analysis of
the Software, or developing, using, providing, or supporting products
or services competitive to Couchbase.
3.2 Customer understands that the Software, Documentation, and any
related technology or services are subject to U.S. export control
laws and regulations. Customer shall comply with all applicable
laws in connection with its use of the Software, Documentation,
Professional Services and Support, including but not limited to
applicable international and domestic export controls, including
economic sanctions, laws, regulations, or orders that apply to Customer,
the Software the Documentation and any related reports, technologies
or services ("Export Laws"). In furtherance of this obligation,
Customer shall ensure that: (a) Customer does not use the Software,
technology or services in violation of any Export Laws; and (b) it
does not provide access to the Software, technology or services to
(i) persons on the U.S. Department of Commerce's Denied Persons List
or Entity List, or the U.S. Treasury Department's list of Specially
Designated Nationals, (ii) military end-users or for military end-use,
or (iii) parties engaged in activities directly or indirectly related
to the proliferation of weapons of mass destruction.
3.3 If Customer does not comply with the license terms or the foregoing
restrictions, Couchbase may (without refund or credit, if applicable,
and without prejudice to any other rights or remedies Couchbase
may have under this Agreement or at law), at its sole discretion:
(i) terminate this Agreement (including all active Orders hereunder)
thereby revoking Customer's Free and/or Enterprise License(s) to the
Software and Documentation, or (ii) suspend Customer's Free and/or
Enterprise License(s) to the Software and Documentation until Customer
comes into compliance with such terms and restrictions.
3.4 Customer acknowledges that a breach of its obligations to Couchbase
under this Agreement, other than the payment obligations, will result
in irreparable and continuing damage for which monetary damages may not
be sufficient, and agrees that Couchbase will be entitled to receive
in addition to its other rights and remedies hereunder or at law,
injunctive and/or other equitable relief. All remedies of Couchbase
set forth in this Agreement are cumulative and in addition to, and
not in lieu of any other remedy of Couchbase as law or in equity.
4. Services.
4.1 This entire Section 4 applies only to Enterprise Licenses fully
paid for by Customer and not to Free Licenses.
4.2 The parties may agree to have Couchbase provide Professional
Services to Customer, which shall be set forth on an Order signed
by both parties. Such Professional Services shall be governed by the
terms and conditions of this Agreement.
4.3 Professional Services and any related reports, technologies or
services are accepted when delivered unless otherwise set forth in an
Order. Couchbase may engage qualified subcontractors to provide the
Professional Services, provided that Couchbase remains responsible for
any subcontractor's compliance with this Agreement. Couchbase grants to
Customer a royalty-free, perpetual, non-exclusive, non-transferable,
non-sublicensable license to use and reproduce any reports for
Customer's internal business purposes.
4.4 Unless explicitly set forth in an Order, any Professional Services
purchased under this Agreement shall expire upon the end of the
Subscription Term (up to and including any expiration date) or after
twelve (12) months if no expiration date is specified (in each case,
the "Services Expiration Date"). Any unused Professional Services
after such Services Expiration Date shall expire without refund
of any prepaid Fees. For Professional Services that would have been
invoiceable in arrears, Couchbase will provide a final invoice for the
unused Professional Services in accordance with this Agreement. Unless
otherwise stated in an Order, Customer shall pay Couchbase's reasonable
travel and incidental expenses incurred in conducting (in relation to
the Professional Services or otherwise) on-site activities at Customer's
site upon receiving an invoice from Couchbase.
5. Proprietary Rights.
5.1 This Agreement does not transfer any right, title or interest
in any intellectual property to any party, except as expressly
set forth in this Agreement. The Software (including the source
code, any modifications, improvements, enhancements or derivatives
thereto), and all Documentation and outputs resulting from 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
resulting reports or written materials), including all intellectual
property rights therein and thereto.
5.2 The Software may include open source software components and such
open source components shall be licensed to Customer under the terms of
the applicable open source license conditions and/or copyright notices
that can be found in the licenses files, Documentation or materials
accompanying the Software.
5.3 If Customer provides any suggestions or feedback regarding the
Software, Documentation, Support, or Professional Services, Couchbase
may use such information without obligation to Customer, and Customer
hereby irrevocably assigns to Couchbase all right, title, and interest
in that feedback or those suggestions.
5.4 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 entire Section 6 applies only to Enterprise Licenses fully
paid for by Customer and not to Free Licenses.
6.2 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 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 Deployment. For the avoidance of doubt,
each specific Deployment can have its own level of Support.
6.3 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.
6.4 Couchbase may modify the terms of Support from time to time,
provided that such modifications do not materially and adversely affect
Customer's Support subscription.
7. Fees.
7.1 This Section 7 applies only to Enterprise Licenses fully paid for
by Customer and not to Free Licenses.
7.2 Customer will pay Couchbase the Fees in advance, within thirty (30)
days of the date of the invoice, unless otherwise explicitly indicated
in the applicable Order. If Customer purchases licenses or services
related to the Software 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 Software shall continue to apply to Customer. All payments are
non-cancelable, not subject to the Limitation of Liability in Section
12 below, and shall be made in the currency stated on the applicable
Order. Fees are non-refundable except to the extent expressly provided
for in this Agreement. Late payments will bear interest at the lesser
of one- and one-half percent (1 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.
7.3 All Fees payable by Customer are exclusive of applicable taxes
and duties (such as, without limitation, VAT, Service Tax, GST,
excise taxes, sales and transactions taxes, and gross receipts tax
(collectively, the "Transaction Taxes"). If applicable, Couchbase may
charge and Customer shall pay all Transaction Taxes that Couchbase
is legally obligated or authorized to collect from Customer. Customer
will provide such information to Couchbase as reasonably required to
determine whether Couchbase is obligated to collect Transaction Taxes
from Customer. Couchbase will not collect, and Customer will not pay,
any Transaction Taxes for which Customer furnishes a properly completed
exemption certificate or a direct payment permit certificate for
which Couchbase may claim an available exemption from such Transaction
Taxes. All payments made by Customer to Couchbase under this Agreement
will be made free and clear of any deduction or withholding, as may
be required by law. If any such deduction or withholding (including
but not limited to cross-border withholding taxes) is required on any
payment, Customer will pay such additional amounts as are necessary so
that the net amount received by Couchbase is equal to the amount then
due and payable under this Agreement. Couchbase will provide Customer
with such tax forms as are reasonably requested in order to reduce
or eliminate the amount of any withholding or deduction for taxes in
respect of payments made under this Agreement.
7.4 Customer is obligated to pay all applicable Fees without any
requirement for Couchbase to provide a purchase order ("PO") number on
Couchbase's invoice (or otherwise). If Customer sends Couchbase a PO
in lieu of executing an Order, the PO will be deemed a binding contract
offer which Couchbase may accept by (i) signing the PO or (ii) sending
a written order acknowledgment of acceptance of the PO (thereby forming
a mutually agreed Order governed by this Agreement). In any event,
only the Commercial Details listed on PO shall be considered part of
the Order created (exclusive of any pre-printed terms on the PO). Any
other terms on the PO which either (i) conflict with the terms of this
Agreement, or (ii) are not agreed under this Agreement, will be void and
without effect, even if Couchbase signs the PO. All accepted POs will
automatically be governed by this Agreement (even if the PO does not
reference this Agreement). It is expressly agreed that Section 7 shall
apply in respect of any PO sent by Customer and accepted by Couchbase.
8. Records Retention and Audit.
8.1 During any Subscription Term and for at least one (1) year
thereafter, Customer shall maintain complete and accurate records to
permit Couchbase to verify Customer's compliance with this Agreement
(including the number of Licensed Nodes and Licensed Devices used
by Customer as well as Customer's compliance with its obligations
post-termination or expiration), and provide Couchbase with such
records within ten (10) days of request.
8.2 Every three (3) months within a Subscription Term (or on another
cadence as mutually agreed between the parties) or upon request by
Couchbase for any use requiring an Enterprise License where no Order
is in place, Customer shall self-certify to Couchbase the total number
of Licensed Nodes and Licensed Devices used in any production, test,
development, or other Deployment. Such self-certification shall
be in accordance with Couchbase's instruction and in the form of
either a (i) written report signed by an authorized representative of
Customer or (ii) copy of an automatically generated report created by
Customer. Couchbase will review such reports and determine if any true
up Order is required. Additional fees for any excess usage shall be
calculated based on the fees specified in the applicable Order for the
applicable Licensed Node or Licensed Device size and type, and prorated,
as applicable. If (i) the excess usage includes nodes or device sizes or
types for which fees are not specified in the applicable existing Order
or (ii) use requiring an Enterprise License occurred without an Order,
then the (additional) fees shall be calculated based on Couchbase's
list price in effect at the time and prorated, as applicable.
8.3 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 the Software solely as necessary to verify Customer's
compliance with the terms of this Agreement during the Subscription
Term and for one (1) year thereafter. 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.
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 Commercial Details). 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 any unauthorized disclosure or 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.
THE SOFTWARE, DOCUMENTATION AND ANY PROFESSIONAL SERVICES PROVIDED
HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING
THAT THE SOFTWARE, DOCUMENTATION OR PROFESSIONAL SERVICES PROVIDED
HEREUNDER WILL MEET CUSTOMER'S REQUIREMENTS, OPERATE IN THE COMBINATIONS
CUSTOMER MAY SELECT FOR USE, WILL BE ERROR-FREE OR UNINTERRUPTED, OR
THAT ALL SOFTWARE ERRORS OR DEFECTS WILL BE CORRECTED. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, COUCHBASE, ANY OF ITS AFFILIATES OR
LICENSORS (COLLECTIVELY, 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, Couchbase will indemnify and defend Customer from and against
any damages finally awarded against Customer resulting from 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; and (d) Customer does
not admit fault or liability with respect to this Agreement, any Order,
Customer's actions or those of Couchbase.
11.2 Enjoinment. Without limiting the forgoing, and notwithstanding
anything to the contrary in this Agreement, if use of the Software
is 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; (ii)
replace or modify the affected Software such that it does not infringe;
or (iii) if either option (i) or (ii) is not commercially feasible in
Couchbase's reasonable opinion, as applicable, terminate the affected
portions of an Order and refund Customer any prepaid but unused Fees
for the affected Software.
11.3 Customer Indemnification. Customer will indemnify and defend
the Couchbase Parties from and against any damages awarded against
Couchbase in connection with any third-party claim arising out of (a)
Customer's use, operation or combination of the Software, including
Customer's data or content, that infringes any United States patent,
United States copyright or United States trademark; (b) use of,
or inability to use the Software by Customer, or any third party
that receives or obtains access to or relies on the Software or any
component thereof from or through (directly or indirectly) Customer;
and (c) any breach by Customer of any provisions of this Agreement,
provided that: (i) Couchbase promptly notifies Customer of the claim;
(ii) Couchbase gives Customer all necessary information regarding the
claim and reasonably cooperates with Customer; (iii) Couchbase allows
Customer exclusive control of the defense and all related settlement
negotiations; and (iv) Couchbase does not admit fault or liability
with respect to this Agreement, any Order, Couchbase's actions or
those of Customer.
11.4 Exclusions. Couchbase will have no liability or obligation to
indemnify under Section 11.1 for any infringement claim arising out of
(i) modifications made by a party other than Couchbase, to the extent
a claim would not have occurred but for such modifications, (ii) the
use of any non-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) 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) any open source software
components, (v) use in violation of this Agreement or in non-compliance
with the applicable Documentation, (vi) Customer's continuation of its
allegedly infringing activity after being notified thereof or after
being provided a replacement or modification by Couchbase that would
have avoided the alleged infringement; or (vii) Couchbase's compliance
with any materials, designs, specifications or instructions provided
by Customer. The Couchbase indemnification obligations will also 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 THE COUCHBASE PARTIES, 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 fully paid for by Customer and 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 THE 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 is effective as of the date of Customer's acceptance
of this Agreement (the "Effective Date") and will continue until:
(i) Customer ceases all use of the Software, or (ii) ninety (90) days
after all of Customer's active Orders hereunder have expired whether
either party gives notice or not, or (iii) either party terminates this
Agreement as set forth in this Section, provided that the parties'
rights and obligations under the provisions listed in Section 13.4
shall survive any termination for all of the foregoing subsections
(i) through (iii). This Agreement shall govern: (i) Customer's Free
Licenses and/or Enterprise Licenses whether Customer has entered
into an Order or not, (ii) Orders that reference this Agreement, and
(iii) any POs submitted by Customer as set forth in Section 7.4. The
Subscription Term for each Order shall commence and have the duration
as set forth in the applicable Order.
13.2 Subject to Couchbase's rights under Section 3 above, either party
may terminate the applicable Order, if the other party materially
breaches its obligations thereunder 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 for any Enterprise License shall survive
termination or expiration of an Order or this Agreement.
13.3 Upon termination or expiration of all active Orders, any Enterprise
Licenses without an Order, and/or this Agreement, Customer will (i)
promptly pay any outstanding fees accrued for any Enterprise Licenses
or as determined under Section 8 hereof, (ii) promptly return or
destroy the Documentation (except as explicitly permitted to be
retained by Customer in an Order) and all copies and portions thereof,
in all forms and types of media, and (iii) uninstall the Software as
described in the then-current Couchbase uninstallation instructions
(located https://docs.couchbase.com/manual/uninstall/). Upon request,
Customer shall provide written certification signed by an officer
of Customer of cessation of use and destruction as set forth herein
within five (5) calendar days of request.
13.4 The following sections will survive termination or expiration
of any Order and/or this Agreement: Section 2.3 (Tools, Connectors,
and Third Party Products), Sections 3 (Customer Responsibilities),
5 (Proprietary Rights), 7 (Fees), 8 (Records Retention and Audit), 9
(Confidentiality), 10 (Disclaimer of Warranty), 11 (Indemnification
of Third-Party Claims), 12 (Limitation of Liability), 13 (Term and
Termination), and 14 (General).
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 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.
14.3 Customer may not assign or transfer its rights or obligations under
this Agreement or an Order, in whole or in part, by operation of law or
otherwise, without Couchbase's prior written consent. Any attempt to
assign or otherwise transfer this Agreement or an Order 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 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
account, if available. Any notice or communication provided by Customer
to Couchbase under this 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,
with a copy emailed to legal@couchbase.com.
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. Except as otherwise set forth in this Agreement, Couchbase
may modify this Agreement (including the Support terms) at any time
by (i) posting a revised version on the Couchbase website or (ii)
by otherwise notifying Customer in accordance with Section 14.5,
and by continuing to use the Software after the effective date of any
such modifications to this Agreement, Customer agrees to be bound by
this Agreement, as modified. The date Couchbase last modified this
Agreement is set forth at the end of this 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.
14.7 This Agreement incorporates the Privacy Notice by reference,
and together with each Order constitute the entire agreement and
understanding of the parties 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. 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: From time to time, Couchbase may release
versions of the Software and/or certain features that are not generally
available (the "Non-GA Offering"), including test, alpha, beta, trial,
pre-production, preview and/or developer preview versions or features. If
Customer uses any Non-GA Offering, then the same terms and conditions
of the "Free Licenses" under the Agreement above shall apply, subject
to the modifications below.
Non-GA Offering Supplemental Terms
For any Non-GA Offering, the definition of Software in Section 1 of
the Agreement shall be replaced by the following and all references to
"Software" in the applicable provisions shall refer to the below instead:
"Software" means the applicable Couchbase product, including any Non-GA
Offering, either (i) as reflected in an Order or (ii) as otherwise made
available to Customer under this Agreement.
Section 2.1 of the Agreement shall be replaced in its entirety by the
following:
2.1. License Grant. Subject to Customer's compliance with the terms and
conditions of this Agreement and the Documentation, Couchbase hereby
grants to Customer a revocable, non-exclusive, non-transferable,
non-sublicensable, royalty-free, non-fee bearing limited license to
install and use the Non-GA Offering of the Software only for Customer's
own internal non-production use for the purpose of evaluation and
development, if applicable (the "Non-GA Offering License"). By accepting
an invitation to install or use, or by installing or using the Non-GA
Offering, Customer acknowledges and agrees that (i) it has relied upon
its own skill and judgment in electing to use such Non-GA Offering in its
sole discretion, (ii) the Non-GA Offering may not work correctly or in
the same way the final version may work and is offered exclusive of any
warranty (as described in Section 10 of the Agreement) or service level
agreement, (iii) the license granted to Customer with respect to the
Non-GA Offering is revocable and terminable at any time in Couchbase's
sole and absolute discretion, (iv) Couchbase may change, withdraw or
discontinue the Non-GA Offering at any time without notice and is under
no obligation to make such generally available, and (v) Couchbase is
not obligated to provide any services or support, including Support,
Professional Services, updates, patches, enhancements, or fixes (either
in the form of descriptions in the Documentation or on the Couchbase
website or otherwise). 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 Non-GA Offering ("Feedback"), and
Customer hereby irrevocably assigns to Couchbase all right, title, and
interest in such Feedback. Customer agrees to the restrictions generally
applicable to the Free Licenses and Software, as applicable, under
this Agreement and any additional requirements set forth by Couchbase
in writing (whether in the Documentation or otherwise) regarding any
particular Non-GA Offering. For the avoidance of doubt, Customer shall
not use any Non-GA Offering in production under any circumstance.
Section 12 of the Agreement shall be replaced by the following:
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
ONE HUNDRED DOLLARS (US $100). 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.
Section 13.1 of the Agreement shall be replaced by the following:
13.1 This Agreement is effective as of the date of Customer's acceptance
of this Agreement and will continue until: (i) Customer ceases to use
the Non-GA Offering and/or the Non-GA Offering License, (ii) the Non-GA
Offering becomes generally available (in which case the terms of the
Free License or the Enterprise License (with or without an Order), as
applicable, shall automatically apply to Customer's use of the Software),
(iii) Couchbase discontinues and terminates the Non-GA Offering and/or
Non-GA Offering Licenses, in its sole discretion, or (iv) either party
terminates this Agreement as set forth in this Section, provided that
the parties' rights and obligations of the provisions listed in Section
13.4 shall survive any termination.
If you have any questions regarding this Agreement, please contact us
at legal@couchbase.com.
Exhibit A
Additional Terms and Conditions for Couchbase Components and Third
Party Products
Couchbase Component: Connector to Tableau Software, LLC
Additional Terms and Conditions: www.couchbase.com/toollicenses/tableau
Product License V11: 20230213