“Application” means Customer’s software application for which Customer is purchasing a subscription as indicated by Customer in the form above. “Documentation” means the documentation regarding the Software available at http://www.mongodb.org/display/DOCS/Doc+Index, which may be modified during the Term. “Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation. “Initial Term” means the period beginning on the Effective Date and ending one (1) year thereafter. “Production Server” is a Server that accepts, reads, or writes data but does not include Servers used for non-production purposes including development, testing, or Q&A. “Renewal Term” means a one (1) year term following the Initial Term. “Server” is a single machine with no more than 256GB of RAM which processes data using one or more CPUs. If a machine includes server blades or virtual servers, each such server blade or virtual server is considered a separate Server. “Software” means all stable releases of the MongoDB software (as designated by an even numbered point version, such as 1.2, 1.4, etc. or interim versions thereof, such as 1.2.5 or 1.4.3) made available by 10gen, or any other version of the Software which 10gen indicates is stable or which 10gen instructs Customer to use. “Support” means the level of support purchased by Customer as indicated by Customer in the form above. “Term” means the Initial Term or a Renewal Term. 2. License
Customer shall not: (i) use the Software other than on Servers; (ii) change any proprietary rights notices which appear in the Software or Documentation; (iii) modify the Software, or (iv) use the Software as part of a commercial time-sharing or service bureau operation or in any other resale capacity With respect to each Application that uses the Software for which Customer has purchased Support (a) all of Customer’s Servers related to such Application must be covered by a subscription, and (b) all Servers running such Application must be at the same Support level (i.e., Gold or Silver). If at any time during the Term Customer (i) increases the quantity of its Servers in the Application using all or part of the Software, (ii) uses Support with additional applications, or (iii) upgrades a non-production Server to a Production Server, no later than thirty (30) days after each such addition or upgrade Customer shall notify 10gen, and pay the Fees (as defined below) applicable to such additional Servers beginning from the first date of such use. All such additional Servers will be covered under this Agreement coterminous with Customer’s then-current term. Fees for additional Servers will be calculated at the then-current annual per-Server prorated over the number of days remaining in such term (based on 365 days per year). 3. Support
A description of Support is set forth at the following web page (including sub-pages thereof): http://www.10gen.com/support. As part of a good-faith effort to improve Support or meet the evolving requirements of its customers, 10gen may modify the Support terms. If Customer reasonably believes that such modification reduces or restricts Customer’s Support, Customer may terminate this Agreement and receive a prorated refund of any pre-paid, unused fees. 10gen will provide notice of modifications by posting on Customer's start, registration, or download pages, or by email. Support is only available in English and for versions of the Software identified by 10gen as stable releases. Customer agrees to (i) notify 10gen immediately of any suspected Error or other technical issue, (ii) provide 10gen with reasonable detail of the nature of and circumstances surrounding the Error, and (iii) provide 10gen with reasonable access to Customer's environment as necessary to enable 10gen to provide Support. 10gen will have no obligation to provide any Support to Customer: (i) for any software, hardware or other element of the Customer environment not provided by 10gen, (ii) if Customer or a third party has altered or modified any portion of the Software without 10gen’s prior written consent, (iii) if Customer has not used the Software in accordance with Documentation or instructions provided by 10gen, including failure to follow implementation procedures, or (iv) if Customer has failed to replace earlier versions of the Software with enhancements provided to Customer. 4. Fees
During the Term, Customer will pay the subscription fees set forth on the invoice received from 10gen or as indicated upon checkout (“Fees”). Customer will pay Fees within 30 days of the invoice date. If Customer fails to pay Fees in accordance with this Section, 10gen may suspend Support until such payment is received. Customer will pay directly any taxes arising out of this Agreement or 10gen’s performance under this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on 10gen’s net income and all employer reporting and payment obligations with respect to 10gen’s personnel. 10gen may make reasonable adjustments to Fees at the beginning of a Renewal Term. 5. Nondisclosure
Each party agrees to use no less than reasonable care to maintain the confidentiality of the non-public, commercially proprietary, or sensitive information provided by the other party which is marked or otherwise identified as “Confidential Information.” The terms of confidentiality under this Agreement shall not be construed to limit either party’s right to independently develop without use of the confidential information of the other party. Either party is free to use for any purpose residual information in non-tangible form, which may be retained in the unaided memory by persons who have had access to the confidential information, including ideas, concepts, know-how, or techniques contained therein. 6. Intellectual Property
As between 10gen and Customer, all intellectual property and proprietary rights in the Software, Documentation, and related works, including derivative works, are, and will remain, the exclusive property of 10gen and nothing in this Agreement will be construed as transferring any aspects of such rights to Customer or any third party. 10gen reserves all rights not expressly granted in this Agreement. Each party will own all right, title, and interest in and to any pre-existing materials of such party or any materials developed by such party independent of this Agreement. 7. Warranty And Disclaimer
10gen does not warrant that the Software will be error-free or that its operation will be uninterrupted. Customer acknowledges that it is responsible for the results obtained from use of the Software, including without limitation the completeness, accuracy, and content of such results. Customer acknowledges further that it is responsible for independent verification and testing of any such results prior to using them in its business. During the Term, 10gen warrants that it will use commercially reasonable efforts to provide Support in a workmanlike manner using qualified personnel. THE SUPPORT AND SOFTWARE, INCLUDING ALL BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, IS PROVIDED TO CUSTOMER “AS-IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Without limiting the generality of the foregoing disclaimer, the Software is not specifically designed, manufactured or intended for use in the planning, construction, maintenance, control, or direct operation of nuclear facilities, aircraft navigation, control or communication systems, weapons systems, or direct life support systems. 8. Limitation Of Liability
In no event will 10gen’s cumulative liability for any claim arising in connection with this Agreement exceed the amount of the total fees paid to 10gen under this Agreement by Customer during the six (6) months preceding any such claim. EXCEPT IN CONNECTION WITH CUSTOMER’S BREACH OF SECTION 2 OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. 9. Indemnification
Customer will indemnify and hold harmless 10gen, its respective employees, officers, directors, shareholders, and agents against any and all losses, costs (including reasonable attorneys' fees), damages, expenses, and liabilities (collectively “Damages”), arising out of or relating to an unaffiliated third party claims resulting from any material breach by Customer of this Agreement. 10. Term And Termination
This Agreement will be in effect for the Initial Term. Thereafter, the Agreement will automatically renew for successive, one (1) year Renewal Terms unless terminated by either 10gen or Customer. Either party may elect not to renew this Agreement by providing written notice at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. Upon termination of this Agreement, 10gen will invoice Customer for all accrued but unpaid Fees, and Customer shall pay the invoiced amount immediately upon receipt of such invoice. If a party believes that the other party has failed to perform a fundamental obligation of this Agreement (a “Breach”), then that party may provide written notice to the other party describing the alleged Breach in reasonable detail and containing a reference to this Section 10.C. If the breaching party does not, within thirty (30) days after receiving such written notice, either (i) cure the Breach or (ii) if the Breach is not one that can reasonably be cured within thirty (30) days, develop a plan to cure the Breach and diligently proceed according to the plan until the Breach has been cured, then the nonbreaching party may terminate this Agreement for cause. Notwithstanding the forgoing, 10gen may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights. Termination of this Agreement will be in addition to any other remedies available to the terminating party under this Agreement. Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement, including but not limited to Sections 5, 6, 8, 9, and 10.D. 11. Informal Dispute Resolution
At the written request of either party, the parties will attempt to resolve any dispute arising under or relating to this Agreement (a “Dispute”) by each appointing a senior management representative who does not devote substantially all of his or her time to performance under this Agreement to resolve the Dispute. The representatives will furnish each other with all non-privileged information about Dispute that the parties believe to be appropriate and germane. The representatives will negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding. Neither party will initiate formal proceedings relating to the Dispute until the earlier of: (i) the designated representatives conclude that resolution through continued negotiation does not appear likely, or (ii) thirty (30) calendar days have passed since the initial request to negotiate the Dispute was made. 12. General
Audit. During the Term and for one (1) year following termination or expiration (but no more than once in a calendar year), 10gen and its auditors may inspect Customer’s records relating to its reproduction and use of Support and the Software for the purposes of verifying Customer’s compliance with this Agreement. Audits will be conducted at a reasonably convenient time, during business hours, and upon at least thirty (30) days’ advance written notice. 10gen and its auditors will comply with reasonable security and confidentiality requirements when accessing Customer facilities or other resources. Customer will cooperate fully with 10gen and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer will promptly pay such amount. Choice of Law and Venue. This Agreement will be governed by the laws of the State of New York without regard to any provisions of its choice of law rules that would result in a different outcome. The parties consent to the jurisdiction of the courts serving New York County, New York, for all disputes arising out of this Agreement. Compliance with Laws. Both parties shall comply with all applicable laws and regulations in performing obligations this Agreement, including, without limitation, all relevant export laws and regulations of the United States, to ensure that no information or technical data provided pursuant to this Agreement is exported or re-exported directly or indirectly in violation of law. Notice. Unless otherwise specified in this Agreement, all notices shall be in writing and shall be mailed (via registered or certified mail, return receipt requested), delivered by a nationally recognized express courier service with the ability to track shipments, or personally delivered to the other party at the address set forth above (or at such other address as either party may designate in writing to the other party). All notices will be effective upon receipt. Assignment. Customer may not assign or transfer this Agreement without the prior written consent of 10gen which consent will not be unreasonably withheld. 10gen may assign this Agreement without Customer’s consent to a third party, or to a successor entity, by way of merger, acquisition, purchase of all or substantially all of its assets, or operation of law. Merger. This Agreement, including any exhibits to this Agreement, constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties. Severability. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this Agreement is declared to be unenforceable for any reason, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. Waiver. No failure or delay by a party in exercising any right, power, or remedy will operate as a waiver of that right, power, or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver will not waive any successive or other right, power, or remedy the party may have under this Agreement. Limitation on Actions. No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party more than one (1) year after the accrual of the cause of action, except that (i) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and (ii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due. Marketing. 10gen will be entitled to list Customer as a 10gen customer on its website and other marketing materials where 10gen lists other customers and 10gen follows Customer’s trademark usage guidelines. Headings. The headings in this Agreement are for convenience of reference only and shall not be used for the construction or interpretation of this Agreement. U.S. Government Restricted Rights. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Software and any Documentation, including its rights to use, modify, reproduce, release, perform, display, or disclose Software or any Documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.