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MongoDB Cloud Subscription Agreement

MongoDB, Inc. or MongoDB Limited ("we," "us," or "our") will provide certain web services ("Cloud Services") to the customer (“Customer,” “you” and “your”) that signs an ordering document (“Order Form”) referencing this Agreement ("Agreement"). If you are located in the Americas (excluding the Caribbean) or Japan, your counterparty is MongoDB, Inc.; if you are located anywhere else, your counterparty is MongoDB Limited. If you represent an organization, you represent and warrant that you are authorized to agree to this Agreement on behalf or your organization.

1. CLOUD SERVICES.

During the term of this Agreement, you may access and use our Cloud Services in accordance with this Agreement. The service level agreement we currently offer with respect to MongoDB Atlas is located at: https://www.mongodb.com/cloud/atlas/availability-sla ("SLA"). You will comply with all laws, rules, and regulations applicable to the use of the Cloud Services and any additional feature or service you use. You may access and use the Cloud Services solely for your internal business purposes. “Affiliate” means an organization that controls, is controlled by, or is under common control with, a party, where “control” means direct or indirect ownership of more than 50% of the voting interests of the organization. Your Affiliates may purchase subscriptions directly from us by signing an Order Form. You may also allow an Affiliate to use your subscriptions as long as you are responsible for the Affiliate’s compliance with this Agreement.

2. CONSULTING SERVICES.

If you purchase consulting services set forth in an Order Form (“Consulting Services”), you will provide MongoDB with (a) reasonable assistance to facilitate scheduling and performance of Consulting Services; (b) information required to perform the Consulting Services; and (c) an engagement manager to help ensure effective delivery of the Consulting Services. Consulting Services and any item or deliverable provided to you as a part of the Consulting Services, including any report (“Deliverables”) are accepted when delivered unless otherwise set forth in an Order Form. We may engage qualified subcontractors to provide the Consulting Services, and are responsible for any subcontractor’s compliance with this Agreement. We grant you a royalty-free, perpetual, nontransferable (except to your Affiliates) and nonexclusive license to use and reproduce any Deliverables for your internal business purposes, except for training materials, which may only be used by the individual employees who attended the training session.

3. SUPPORT SERVICES.

If you purchase a support subscription, will provide you with support in accordance with the applicable support policy available on our website. While we may modify our support policy from time to time, we will not modify it in a way that materially and adversely affects your subscription. With respect to any software included in your support subscription (“Software”), MongoDB grants you a nontransferable (except to your Affiliates) and nonexclusive license during the term of the subscription to use and reproduce the Software in connection with the Atlas Credits set forth in the Order Form. Your use of the Software is subject to the restrictions set forth in Section 6(b), and you may not use any support included in a subscription for an unsupported application. You may only use your support subscription and any Software in connection with the MongoDB Atlas Credits purchased in the same Order Form as the applicable support subscription. Support subscriptions expire at the earlier of the consumption or expiration of the MongoDB Atlas Credits purchased in the same Order Form as the applicable support subscription.

4. REGISTRATION AND YOUR ACCOUNT.

To register to use the Cloud Services you must create a username and password and provide us with the information requested in the registration process, including your email address. You may enable two-factor authentication to access your account information. Do not disclose your username, password or two-factor authentication information to any unauthorized persons. You are responsible for all activities that occur under your account, regardless of whether undertaken by you, your employees or a third party (including contractors or agents) and we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You will provide complete and accurate information during the registration process and will update it to ensure it remains accurate.

5. CONFIDENTIALITY, PUBLICITY, AND DATA PROCESSING.

(a) “Confidential Information” means information a party designates as confidential or reasonably considers as confidential, and includes pricing information on an Order Form. “Confidential Information” excludes information that is (i) or becomes publicly available through no fault of the recipient, (ii) received from a third party without a duty of confidentiality, (iii) independently developed by the receiving party without breaching this Agreement; or (iv) rightfully known or lawfully in the possession of the receiving party prior to disclosure from the other party. The receiving party will use the disclosing party’s Confidential Information only in connection with this Agreement and protect the disclosing party’s Confidential Information by using the same degree of care used to protect its own confidential information, but not less than a reasonable degree of care. The receiving party will limit disclosure of the disclosing party’s Confidential Information to its and its Affiliates’ directors, officers, employees and contractors who are bound to confidentiality obligations at least as protective as the confidentiality provisions in this Agreement and who have a need to know the Confidential Information. The receiving party will not disclose the disclosing party’s Confidential Information to any other third party without the consent of the disclosing party. The receiving party may disclose Confidential Information pursuant to a compulsory governmental process, provided that the receiving party, if legally permitted, promptly notifies the disclosing party, so that the disclosing party may seek to make such disclosure subject to a protective order or other appropriate remedy. Each party will return or destroy the other party’s Confidential Information upon written request from the other party. The confidentiality obligations in this section remain in effect during the term and three years after termination of this Agreement, except for trade secrets, which survive termination of this Agreement indefinitely.

(b) You are solely responsible for the development, content, operation, maintenance, and use of your data. You will ensure that your data, and your use of it, complies with this Agreement and any applicable law. You are responsible for properly configuring and using the Cloud Services and taking your own steps to maintain appropriate security, protection and backup of your data. You represent and warrant that you will not store or process protected health information using the Cloud Services. We routinely collect and analyze metadata regarding user files and usage data, excluding any personal data, but including header information, checksum quantities, file size, file type, and archival dates. We use this information to gauge Cloud Services levels and application performance, for our own marketing purposes, and, in some instances, for data recovery purposes. We make the previous 12-months’ historical usage data available to you, and may delete any usage data older than 12 months. If you purchase a backup storage option, we will use commercially reasonable efforts to provision necessary storage space to move your data to backup media. Notwithstanding anything herein, if you deploy an M0 (Free Tier) MongoDB Atlas cluster, we may delete that cluster if there has been no activity in it for 30 days.

(c) Data Processing. For the purposes of this Section, the terms "controller", "data subjects", "personal data", "processor", "processing", and “supervisory authority” shall have the meaning given to them by the European Union Regulation 2016/679 (“GDPR”). We will process any personal data you include in your use of our Cloud Services (the "Customer Personal Data") on your behalf as a processor, and you are the controller of such data.

  1. Each party undertakes to comply with all data protection legislation applicable to it ("Data Protection Law") and shall not knowingly cause the other to breach Data Protection Law.
  2. We will process Customer Personal Data only in accordance with your documented instructions and not for our own purposes. If we are required to process Customer Personal Data for any other purpose by European Union or Member State law to which we are subject, we shall inform you of this requirement before the processing, unless that law prohibits this on important grounds of public interest.
  3. We will ensure that our personnel who have access to the Customer Personal Data have committed themselves to confidentiality and are aware of and comply with our duties and their personal duties and obligations under this Agreement.
  4. We will implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Customer Personal Data. A description of those technical and organizational security measures is incorporated as Exhibit A to this Agreement, located at [https://www.mongodb.com/technical-and-organizational-security-measures](https://www.mongodb.com/technical-and-organizational-security-measures). In case of a personal data breach which affects Customer Personal Data, we will notify you without undue delay after becoming aware of it.
  5. You acknowledge and agree that we may retain our affiliates and other third parties as sub-processors (all together "Sub-Processors") in connection with the provision of the Cloud Services having imposed on such Sub-Processors the same data protection obligations as are imposed on us under this Agreement. We will be liable to you for the performance of the Sub-Processors' obligations. We will inform you in advance of any changes concerning the addition or replacement of third party processors.
  6. Taking into account the nature of the processing, we will assist you by appropriate technical and organisational measures insofar as it is possible to fulfill your obligations to respond to requests from data subjects exercising their rights.
  7. Taking into account the nature of the processing and the information available to us, we will assist you, at your cost, to ensure compliance with the obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
  8. In order to ensure that adequate safeguards are in place for the processing of Customer Personal Data from the European Union in the United States, MongoDB, Inc. has obtained EU-U.S. Privacy Shield certification.
  9. Upon termination of this Agreement or upon your request, we will destroy or return all Customer Personal Data to you (unless European Union or Member State law requires storage of the Customer Personal Data).
  10. We will make available to you all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by you or an auditor mandated by you.

6. PAYMENT AND TAXES.

(a) Fees. You will pay undisputed fees and reimburse any reasonable business expenses as set forth on and in accordance with an Order Form. Your payment for our subscriptions is non-refundable and you may not cancel an Order Form except as stated in this Agreement. Our fees exclude and you will pay applicable taxes and similar charges, including sales, usage, excise and value added taxes. Nothing in this Agreement requires either party to pay any income taxes or similar charges of the other party. If applicable law requires you to withhold any amount from your payment, you will provide us with copies of documents related to your withholding upon our request.

7. TERM AND TERMINATION.

(a) Term; Termination. The term of this Agreement commences when you sign an Order Form and will remain in effect until terminated in accordance with this Agreement. Either party may terminate this Agreement for convenience immediately upon notice if all Order Forms under this Agreement have expired. Neither party may terminate an Order Form for convenience. If a party fails to cure a material breach of this Agreement within 30 days after receipt of written notice of the breach, the other party may terminate any affected Order Form. We may also terminate your account and this Agreement, or suspend your account, immediately if we determine that: (i) your use of the Cloud Services poses a security risk to the Cloud Services or any third party; (ii) your use of the Cloud Services may adversely impact the Cloud Services; (iii) your use of the Cloud Services may subject us, our affiliates, or any third party to liability; (iv) your use of the Cloud Services may be fraudulent; or (v) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If we suspend your right to access or use any portion or all of the Cloud Services you remain responsible for all fees and charges you have incurred through the date of suspension and you will not be entitled to any credit or refund.

(b) Effect of Termination. Upon termination of this Agreement (i) all your rights under this Agreement immediately terminate and (ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination. We have no obligation to continue to store the data contained in backup snapshots or in a MongoDB Atlas cluster that you have terminated or after termination of this Agreement.

8. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP.

(a) Your Data. You represent and warrant to us that: (i) you or your licensors own all right, title, and interest in and to your data; (ii) you have all rights in your data necessary to grant the rights contemplated by this Agreement; and (iii) none of your data violates this Agreement, any applicable law or any third party’s intellectual property or other right.

(b) Cloud Services. You may not and will not permit others to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Cloud Services; (ii) reverse engineer, disassemble, or decompile the Cloud Services or apply any other process or procedure to derive the source code of any software included in the Service; (iii) access or use the Cloud Services in a way intended to avoid incurring fees or exceeding usage limits or quotas; (iv) resell or sublicense the Cloud Services; (v) use the Cloud Services in connection with any fork or derivative work of the MongoDB database; (vi) attempt to disable or circumvent any security mechanisms used by the Cloud Services; (vii) use the Cloud Services to perform a malicious activity; or (viii) upload or otherwise process any malicious content to or through the Cloud Services.

(c) No Other Rights. This Agreement does not transfer any right, title or interest in any intellectual property right to the other, except as expressly set forth in this Agreement. You are not obligated to provide us with any suggestions or other feedback about the Cloud Services or otherwise, but if you do, we may use and modify this feedback without any restriction or payment.

9. WARRANTIES.

MongoDB represents and warrants that its provision of the Cloud Services, Consulting Services and support complies with applicable law. MongoDB represents and warrants that it will perform Consulting Services and support in a diligent and workmanlike manner consistent with industry standards. MongoDB represents and warrants that the Cloud Services will perform substantially in accordance with the documentation located at https://docs.atlas.mongodb.com/. Your exclusive remedy for MongoDB’s material breach of warranty is to terminate any affected Order Form in accordance with Section 5 and receive a refund of any prepaid fees for unused subscriptions. Except as stated in this Section, we provide Cloud Services, Consulting Services and support on an “AS-IS” basis. To the fullest extent permitted by law, MongoDB disclaims and this Agreement excludes any implied or statutory warranty, including any warranty of title, non-infringement, merchantability or fitness for a particular purpose.

10. LIMITATION OF LIABILITY.

(a) Except as set forth in Section 8(b), neither party will be liable to the other party for (i) any incidental or consequential damages, including lost profits or business opportunities, or any special or punitive damages; or (ii) an amount that exceeds the total fees payable to MongoDB by Customer during the 12-month period before the event giving rise to the liability.

(b) Each party’s cumulative liability under Section 9 will not exceed the greater of: (i) $3,000,000; or (ii) the amount of five times the total fees payable to MongoDB by Customer in the 12-month period before the infringement claim.

(c) Nothing in this Agreement limits either party’s liability for the following: (i) gross negligence or intentional misconduct, (ii) fraud or fraudulent misrepresentation, (iii) death or personal injury caused by negligence, (iv) Customer’s payment obligation under Section 4; or (v) any liability which cannot legally be limited.

11. INDEMNIFICATION.

(a) Customer Indemnification. You will defend us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any damages, reasonable legal fees and costs finally awarded against MongoDB to the extent resulting from or for amounts paid by MongoDB to settle any third party claim concerning your data or the combination of your data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your data or by the use, development, design, production, advertising or marketing of your data. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

(b) MongoDB Indemnification. If a third party asserts a claim against Customer that the Cloud Services infringe a third party’s intellectual property right (a “Claim Against You”), MongoDB will defend Customer against the Claim Against You at MongoDB’s expense and indemnify Customer from any damages, reasonable legal fees and costs finally awarded against Customer to the extent resulting from the Claim Against You or for amounts paid by Customer to settle the Claim Against You. MongoDB will not be obligated to defend or indemnify Customer if the Claim Against You is based on any breach of this Agreement by Customer.

(c) Infringement Remedies. In addition to MongoDB’s indemnity obligations, if the Cloud Services become, or in MongoDB’s opinion are likely to become, the subject of an infringement claim, MongoDB may at its option and expense and as Customer’s sole and exclusive remedy: (i) procure for Customer the right to make continued use of the Cloud Services; (ii) replace or modify the Cloud Services so that they become non-infringing; or (iii) terminate the Cloud Services and refund a prorated portion of the prepaid but unused fees paid.

(d) Indemnification Procedures. Each party will provide the other with prompt notice of any claim. A party’s failure to provide prompt notice to the other party relieves the party of its obligation to defend and indemnify the other party only to the extent that the failure to provide notice materially harms the party’s ability to defend the claim. The indemnifying party will have sole control of the defense of the claim, including any settlement. The indemnified party will provide the indemnifying party with reasonable cooperation in connection with the defense of the claim, and may participate in the defense at its own expense. This Section 9 sets forth each party’s exclusive remedy for any third party infringement claim.

12. MISCELLANEOUS.

Notices under this Agreement will be in writing and effective on the delivery date. We may provide any notice to you under this Agreement by posting a notice on the site for the applicable Cloud Services or sending a message to the email address associated with your account. To give us notice under this Agreement, you must (1) email us at legal@mongodb.com, or (2) send us your notice by certified mail, return receipt requested, to MongoDB, Inc., 1633 Broadway, 38th Floor New York, NY 10019, Attention: Legal Department. For customers located in North, Central or South America, New York law governs this Agreement, excluding any applicable conflict of laws rules or principles, and the parties agree to the exclusive jurisdiction of the courts in New York, New York. For customers located elsewhere, the law of England and Wales governs this Agreement, and the parties agree to the exclusive jurisdiction of the courts in London, England. This Agreement does not create a partnership, agency relationship, or joint venture between the parties. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Unless you tell us otherwise in writing, we may refer to our relationship with you as a customer. Any assignment of this Agreement by you without our prior written consent will be null and void, except an assignment to an Affiliate or in connection with a merger or sale of all or substantially all of your assets or stock, provided that you may not transfer this Agreement to an Affiliate that is a competitor of ours without our prior written consent. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to effect the parties’ intention and the remaining provisions will not be affected. The parties may amend this Agreement only in a written amendment signed by both parties. This Agreement, any addenda or exhibits, and any Order Form comprise the parties’ entire agreement relating to the subject matter of this Agreement, and any reference to or use of a purchase order is for convenience, and any terms that govern the purchase order are of no effect. Customer’s purchase under this Agreement is not contingent on, and Customer has not relied on, the delivery of any future functionality, regardless of any communication about our products. Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control.