By agreeing to an Order Form that references this Reseller Agreement (this “Agreement”), you agree to this Agreement. If you represent an organization, you represent and warrant that you have the authority to agree to this Agreement on behalf of your organization.
1. Definitions. The following terms have the following meanings:
“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.
“Cloud Services” means MongoDB Atlas or any other cloud service included in a Subscription.
“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 (a) or becomes publicly available through no fault of the recipient, (b) received from a third party without a duty of confidentiality, (c) independently developed by the receiving party without breaching this Agreement, or (d) rightfully known or lawfully in the possession of the receiving party prior to disclosure from the other party.
“Consulting Services” means the consulting or professional services included in a Subscription.
“End User Agreement” means MongoDB’s then current agreement governing the use of the Software, Consulting Services or Cloud Services as specified in an Order Form.
“End User” means a customer who purchases a Subscription from the Reseller directly for its own internal use, or for incorporation into its own products and services, and not for further resale or distribution.
“Marketing Guidelines” means MongoDB’s then current Marketing Guidelines, the most recent version of which is available at our trademark guidelines.
“MongoDB,” “we” and “us” means the MongoDB company that signs an Order Form.
“Order Form” means an ordering document signed by both parties for Subscriptions that refers to this Agreement.
“Reseller,” “you” and “your” means the organization that signs an Order Form.
“Server” means a virtual machine or container that stores data up to the amount of RAM specified on an applicable Order Form.
“Software” means any software included with a Subscription as set forth in an Order Form, including any generally available updates to such software, but excluding (a) beta offerings and (b) open source software components, each of which has its copyright notice and license included in the license file and documentation.
“Subscription” means a subscription for our Software, Support, Cloud Services or Consulting Services set forth on an Order Form.
“Support” means support, if any, included in a Subscription.
2. Subscriptions. MongoDB grants you a non-exclusive and non-transferable right to resell MongoDB Subscriptions and distribute any Software included in a Subscription, subject to the following conditions: (a) you may resell Subscriptions only to End Users, and you may not resell Subscriptions to other resellers without our prior written consent; (b) you will reasonably cooperate with us to prevent unauthorized use of a Subscription and promptly notify us of any known or suspected breach of any provision of the applicable End User Agreement by an End User; (c) you will not resell any Subscription without an Order Form that sets forth the Subscriptions you will resell to an End User; and (d) your compliance with Section 3 below. Reseller’s rights are not exclusive, and MongoDB may directly or through any other distribution channel, including through other distributors, sales representatives and resellers, market and sell Subscriptions or any other MongoDB product or service. We grant you a non-exclusive and non-transferable license to install and/or use the Subscription solely for marketing and demonstrating the Software or Cloud Services to potential End Users. Your Affiliates may resell MongoDB Subscriptions and distribute any Software included in a Subscription by signing an Order Form directly with us (“Affiliate Order”). Such Affiliate Order will be subject to the terms of this Agreement.
3. Restrictions. As a condition to the licenses and permissions granted in Section 2 above, you will not, and will not allow any End User or other third party to: (a) sell, sublicense, distribute, provide access to, market, or commercialize the Software, Cloud Services, or Subscriptions, except as expressly permitted in Section 2; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from, any portion of the Software, the Cloud Services, or any software included in the Cloud Services; (c) modify or create a derivative work of any portion of the Software or any software included in the Cloud Services; (d) remove any identification, proprietary, copyright or other notices in the Software or documentation; (e) publicly disseminate performance information about or analysis of the Software or Cloud Services, including benchmarking test results; (f) use the Software on more Servers than licensed on an Order Form; (g) use any Support included in a Subscription for an unsupported application; (h) use the Cloud Services in a way that poses a risk to the availability, functionality or security of the Cloud Services; or (i) use the Cloud Services or the Software unlawfully or in a way intended to avoid incurring fees or exceeding usage limits or quotas.
4. Reseller Obligations.
(a) Personnel. Reseller’s sales representatives will be reasonably capable of effectively delivering our value proposition and must be generally knowledgeable about our Subscriptions, Software and Cloud Services, and the advantages and high-level functionality of our Software and Cloud Services. Reseller agrees that its sales representatives and other personnel will use reasonable efforts to participate in the basic online training offered for free by MongoDB. Reseller will: (i) conduct business in a manner that reflects favorably at all times on MongoDB; and (ii) not engage in deceptive, misleading or unethical practices, including making any misleading or deceptive statements in connection with advertising our Subscriptions, Software and Cloud Services.
(b) Compliance with Applicable Laws. Reseller represents and warrants that it will comply with all applicable laws that govern its performance of this Agreement. Without limiting the generality of Reseller’s obligations under this Agreement, Reseller represents and warrants that in the performance of any of Reseller’s activities under this Agreement:
(i) Reseller and its Affiliates and subsidiaries are familiar with, have not violated, and will not violate or cause MongoDB to violate any provision of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010, or any other applicable anti-corruption law or regulation (collectively, the “Anti-Corruption Laws”). Reseller agrees that it and its officers, directors, employees, independent contractors, Affiliates, agents, representatives, and subsidiaries will not pay, offer, give, promise, or authorize the payment of money or any other thing of value to any government official (as defined in the Anti-Corruption Laws) or any other person for the purpose of influencing any act or purchasing decision, or otherwise in violation of the Anti-Corruption Laws. Reseller shall (and shall cause each of its subsidiaries and Affiliates to) maintain systems of internal controls to ensure compliance with Anti-Corruption Laws. Reseller will not make any payment on behalf of or for the benefit of MongoDB that is not properly and accurately recorded in Reseller’s books and records.
(ii) None of Reseller’s owners or employees is a government official (as defined in the Anti-Corruption Laws). If any director, employee, direct or indirect owner, representative, consultant or agent who is or will be involved in Reseller’s sales or referral activities for MongoDB, is or becomes a government official or a family member of a government official, Reseller will promptly notify MongoDB in writing.
(iii) Reseller and its Affiliates and subsidiaries are familiar with and will comply with the Export Administration Regulations, sanctions issued by the U.S. Department of the Treasury's Office of Foreign Assets Control and any other applicable U.S. or international sanction, export or import law, and embargo (collectively, the “Export Control Laws”). Reseller will not market or resell the Software or Cloud Services to any person or entity that is listed on any U.S. government list of prohibited or restricted parties (including the Specially Designated Nationals and Blocked Persons List and the Entity List), is located in or is a national of a country that is subject to a U.S. government embargo, or is designated by the U.S. government as a “terrorist supporting” country, or where such resale would otherwise violate the Export Controls Laws.
(c) Verification. Reseller agrees that it will, at MongoDB’s request, certify in writing to MongoDB that Reseller is in full compliance with the terms of this Agreement and all applicable Anti-Corruption Laws and Export Control Laws. If MongoDB reasonably believes that Reseller is in breach of any applicable law or this Section 4, MongoDB or its designated agent may conduct an audit of Reseller’s books, records and related material to determine if a breach has occurred and ensure compliance. Any audit shall be conducted during regular business hours in a manner that will not unreasonably interfere with Reseller’s normal business activities. Reseller must promptly report to MongoDB any actual or suspected breach of this Section 4. MongoDB shall have the right to terminate this Agreement and reject or cancel any transaction immediately upon the determination by MongoDB that Reseller has breached any of the provisions in this Section 4.
5. Confidentiality. This Agreement supersedes any applicable non-disclosure agreement between the parties with respect to your use and/or sale of the Subscriptions. 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 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 except where required to comply with applicable law or a compulsory legal order or process, provided that the receiving party will, if legally permitted, promptly notify the disclosing party. The confidentiality obligations in this Section 5 remain in effect during the Term and for three years thereafter, except confidentiality obligations that protect trade secrets do not terminate. Each party will return or destroy the other party’s Confidential Information upon written request from the other party.
6. Trademarks. We grant to you a non-exclusive and non-transferable right to display our logos and trademarks that we make available to you during the Term solely for the purpose of marketing and promoting the Software and Cloud Services under this Agreement and in compliance with the Marketing Guidelines. You will not market the Software and Cloud Services without clearly identifying MongoDB as the developer or provider thereof. You grant to us a non-exclusive and non-transferable right to use your logos and trademarks during the Term in marketing materials and in public statements, including placement on our website, inclusion in partner and reseller lists, and customer briefings.
7. Price, Payment and Taxes. You will receive a discount in our discretion off our then current price for Subscriptions as follows: (a) if End User is sourced by you, up to 12.5 %, and (b) if End User is sourced by us, up to 5%. 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. For each sale of a Subscription to an End User, Reseller will provide MongoDB with documentation that proves that Reseller provided the Subscriptions to End User such as a purchase order from the End User that itemizes the Subscriptions, a confirmation letter from an End User acknowledging End User's purchase of the Subscriptions from Reseller, or similar documentation, the sufficiency of which will be solely determined by MongoDB. During the Term and for three years thereafter, Reseller will keep and maintain written records and accounts regarding Reseller’s use and sale of Subscriptions and compliance with this Agreement. MongoDB, or its independent accountants, consultants or designated agents, may upon written notice to Reseller, audit Reseller’s records. Any discrepancies revealed by any audit will be corrected, including payment or crediting of compensation, as appropriate, within 30 days of the date of the auditor’s report. If the auditor’s report indicates any underreporting of the amount of payments due to MongoDB, Reseller will pay the difference, together with interest at the rate of 1% per month from the date on which such amounts originally became due.
8. Intellectual Property. This Agreement does not transfer any right, title or interest in any intellectual property right of either party to the other except as expressly set forth in this Agreement. Any goodwill accruing to a party’s logos and trademarks due to activities under this Agreement inures to the benefit of the party that owns the logos and trademarks. You are not obligated to provide us with any suggestions or other feedback, but if you do, we may use and modify this feedback without any restriction or payment.
9. Disclaimer. To the extent permitted by applicable law, the Subscription, the Software, including all Software updates, bug fixes, work arounds, or error corrections, and the Cloud Services, including beta offerings, are provided on an “as-is” basis, without any warranties of any kind, express or implied, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement, or title.
10. Limitation of Liability.
(a) Except as set forth in Section 10(b), neither party will be liable to the other in connection with this Agreement 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 by Reseller to MongoDB during the 12-month period before the event giving rise to the liability.
(b) Each party’s cumulative liability under Section 11 will not exceed $3,000,000. Nothing in this Agreement limits (i) either party’s liability for gross negligence or intentional misconduct, or for death or personal injury, or (ii) Reseller’s obligation to pay for Subscriptions purchased in an Order Form.
11. Indemnification.
(a) Reseller Indemnification. If a third party asserts a claim against MongoDB based on Reseller’s violation of any applicable law, or alleging that software, hardware, content, processes or data used by Reseller in connection with the Software or Cloud Services infringes a third party’s intellectual property right (a “Claim Against Us”), Reseller will defend MongoDB against the Claim Against Us at Reseller’s expense and indemnify MongoDB from any damages, reasonable legal fees and costs finally awarded against MongoDB to the extent resulting from the Claim Against Us or for amounts paid by MongoDB to settle the Claim Against Us. Reseller will have no obligation to defend or indemnify MongoDB if the Claim Against Us is based on MongoDB’s unauthorized changes to Reseller content, data or other information.
(b) MongoDB Indemnification. If a third party asserts a claim against Reseller that the Software or Cloud Services included in a Subscription infringes a third party’s intellectual property right (a “Claim Against You”), MongoDB will defend Reseller against the Claim Against You at MongoDB’s expense and indemnify Reseller from any damages, reasonable legal fees and costs finally awarded against Reseller to the extent resulting from the Claim Against You or for amounts paid by Reseller to settle the Claim Against You. MongoDB will not be obligated to defend or indemnify Reseller if the Claim Against You is based on: (i) combination of the Software or Cloud Services by you or your End User with other software, content, data or business process not contemplated by documentation; (ii) use of any older release of the Software by you or your End User when use of a newer version would have avoided the alleged or actual infringement; (iii) any modification of the Software or Cloud Services made by anyone other than MongoDB; (iv) MongoDB's compliance with any materials, designs, specifications or instructions provided by Reseller or your End User; or (v) any breach of this Agreement by Reseller.
(c) Infringement Remedies. If the Software or Cloud Services becomes, or in MongoDB’s opinion is likely to become, the subject of an infringement claim, MongoDB may at its option and expense and as Reseller’s sole and exclusive remedy: (i) procure a license or right for End User’s continued use of the Software or Cloud Services; (ii) replace or modify the Software or Cloud Services so that it becomes non-infringing; or (iii) terminate Reseller’s right to resell and distribute the Subscriptions and refund a prorated portion of the prepaid but unused fees paid for the Subscriptions.
(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 solely control 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 11 sets forth each party’s exclusive remedy for any third-party infringement claim.
12. Term and Termination. This Agreement commences when you agree to an Order Form and continues until terminated in accordance with this Section 12 (the “Term”). 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 this Agreement and any affected Order Form. MongoDB may suspend access to the Cloud Services for any End User if it fails to receive payment from Reseller with respect to that End User or if that End User violates the restrictions in Section 3 or the terms of the applicable End User Agreement. Either party may terminate this Agreement for convenience and without any liability upon 60 days’ prior written notice.
Upon termination of this Agreement, all rights granted to Reseller hereunder terminate and Reseller will immediately discontinue the marketing, demonstration and distribution of the Subscriptions, Software and Cloud Services. Upon termination of this Agreement, Reseller will immediately remit to MongoDB any outstanding amounts payable. The termination of this Agreement will not affect any Order Form in effect on the date of expiration or termination.
13. General.
(a) Independent Contractors. The parties to this Agreement are independent contractors. Neither party nor any of its respective Affiliates is an agent of the other for any purpose, and neither party nor any of its respective Affiliates has the authority to bind the other party. This Agreement does not create a partnership, agency relationship or joint venture between the parties or any third parties. This Agreement does not create any third-party beneficiary rights in any third party.
(b) Assignment. 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.
(c) Waiver and Amendment. A party’s failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision, or limit our right to enforce such provision at a later time. If any provision of this Agreement is unenforceable, that provision will be modified to render it unenforceable 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.
(d) Entire Agreement. Neither party has entered into this Agreement in reliance on any representations or warranties other than those expressly set forth in this Agreement or in an applicable Order Form. If any conflict exists between the provisions in this Agreement and any Order Form, the Order Form controls, and if any conflict exists between this Agreement and any addenda, exhibit or other agreement, this Agreement controls. A purchase order is for convenience only and any terms that govern the purchase order are of no effect. This Agreement, any addenda or exhibits, and any Order Form comprise the parties’ entire agreement relating to the subject matter of this Agreement, and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or oral, regarding the subject matter of this Agreement.
(e) Notice and Communications. Notices under this Agreement will be in writing and effective on the delivery date. The parties will deliver notices by (a) email, in the case of MongoDB to legal@mongodb.com and, in the case of Reseller to the email address set forth on your most recent Order Form or (b) personal delivery or courier to the address of the other party set forth on Reseller's most recent Order Form. All communications you send us must be in English.
(f) Choice of Law; Consent to Jurisdiction. If Reseller is located in North 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. If Reseller is 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. We may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of our proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
(g) Reliance Reseller's entry into this Agreement is not contigent on, and Reseller 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.