By signing an Order Form that references this Reseller Agreement (this “Agreement”), you agree to this Agreement. 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.
“Confidential Information” means information a party designates as confidential or reasonably considers as confidential, and includes pricing information on an Order Form. “Confidential Information” does not include information that is or becomes publicly available through no fault of the recipient or received from a third party without a duty of confidentiality.
“Customer Agreement” means MongoDB’s then current agreement governing use of the Software.
“End User” means a customer who purchases a Subscription from Reseller directly for its internal business use 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 https://www.mongodb.com/legal/trademark-usage-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 each 256GB unit of RAM of: (a) a physical machine, dedicated server, or server blade, that stores data; or (b) an instance that stores data in a public or private cloud, where “cloud” includes any type of virtualized or containerized environment (e.g., simple operating systems, virtual machines, CGroups).
“Services” means the services included as part of a Subscription set forth in an Order Form.
“Software” means the MongoDB Enterprise database software, our Ops Manager, Compass and Business Intelligence Integration software and any other software included with a Subscription, including any generally available updates to such software, but excluding 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, or Services set forth on an Order Form.
“Support” means support, if any, included in a Subscription.
2. Order Forms for Subscriptions. MongoDB grants you a non-exclusive and non-transferable right to resell MongoDB Subscriptions and distribute any Software included in a Subscription set forth on an Order Form, 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 Customer Agreement by an End User; (c) You will not resell any Subscription without an Order Form with us listing all the Subscriptions you will resell to an End User; and (d) Your compliance with Section 3 below. Reseller’s right is not exclusive, and MongoDB may directly or through any other distribution channel, including appointment of other distributors, sales representatives and resellers, market and sell Subscriptions or any other MongoDB product. We grant you a non-exclusive and non-transferable license to install and use the Software solely for marketing and demonstrating the Software to potential End Users. Your Affiliates may resell MongoDB Subscriptions and distribute any Software included in a Subscription set forth on an Order Form by signing an Order Form directly with us (“Affiliate Order”). Such Affiliate Order will be subject to the terms of this Agreement.
3. Software Restrictions. As a condition to your license grant in Section 2 above, you will not, and will not allow any third party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from, any portion of the Software; (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Software or the Subscription, except as expressly permitted in Section 2; (c) directly or indirectly circumvent or violate the technical restrictions of the Software; (d) remove any identification, proprietary, copyright or other notices in the Software or documentation; (e) modify or create a derivative work of any portion of the Software; (f) publicly disseminate performance information about or analysis of the Software, including benchmarking test results; (g) permit an End User to use the Software on more Servers than licensed on an Order Form or to use any Support included in a Subscription for an unsupported application; or (h) permit an End User to use our Ops Manager or Business Intelligence Integration software in connection with any application that is not covered by an Enterprise Advanced Subscription, or permit an End User to use Compass with an application that is not covered by an Enterprise Advanced Subscription or MongoDB Professional Subscription.
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 and Software, and the advantages and high-level functionality of our Software. 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 and Software.
(b) Compliance with Applicable Laws. Reseller represents and warrants that it will comply with all applicable laws that govern its performance of this Agreement, including applicable U.S. Export Administration Regulations, U.S. embargoes, and anti-bribery laws such as the Foreign Corrupt Practices Act (US) and the Anti-Bribery Act (UK), and will not pay any bribes or otherwise try to unlawfully influence any purchasing decision by an End User. Without limiting the generality of Reseller’s obligations under this Agreement, Reseller represents and warrants that in the performance of any of Reseller’s other activities under this Agreement:
(i) Reseller has not, and will not at any time, directly or indirectly, pay, offer, give or promise to pay or give, authorize the payment of, or accept or solicit any monies or any other thing of value to: (I) any director, officer or employee of, or any person acting in an official capacity for or on behalf of, any government/military agency or department, government owned or controlled entity, or public international organization; (II) any political party or party official or representative; (III) any candidate for public office; or (IV) any person, firm, corporation or other entity at the suggestion, request or direction of any director, officer or employee of any government/military agency or department, government owned or controlled entity, or public international organization, or any political party, political party official, or candidate for public office, to obtain, retain or direct any business or for any other improper purpose.
(ii) 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 a government official or a family member of a government official, Reseller will notify MongoDB in writing.
(iii) Reseller will comply with any applicable law that governs the export and re-export of Software. Under applicable U.S. law, you may not export to, or permit the download of our Software by, any person located in a country or territory subject to a U.S. embargo, including Iran, North Korea, Cuba, Syria, Sudan and the Crimea, or to any person on the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identifications List, which are maintained by the U.S. Department of Treasury, the Entity List, Denied Persons List, and Unverified List, which are maintained by the U.S. Department of Commerce.
(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. If MongoDB reasonably believes that Reseller is in breach of any applicable law, MongoDB may conduct an audit of Reseller’s records and related material to ensure compliance. Reseller must promptly report to MongoDB any actual or suspected breach of this Section 4.
5. Confidentiality. “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 (a) is or becomes publicly available through no fault of the recipient, (b) is received from a third party without a duty of confidentiality, (c) is independently developed by the receiving party without breaching this Agreement; or (d) is rightfully known or lawfully in the position 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 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 confidentiality obligations in this Section 5 remain in effect during the term and three years after termination of this Agreement, 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. The receiving party may disclose Confidential Information pursuant to a compulsory governmental process, provided that 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.
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 Subscriptions and Software under this Agreement and in compliance with the Marketing Guidelines. You will not use our logos or trademarks in connection with search engine rankings, ad word purchases, or as part of a trade name, business name, or Internet domain name. 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 or consultants, 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. Except for the express licenses set forth in this Agreement, this Agreement does not transfer any right, title or interest in any intellectual property right of either party to the other. 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. If you choose to provide us with suggestions, ideas for improvement, recommendations or other feedback, we may use your feedback without any restriction or payment.
9. Disclaimer. To the extent permitted by applicable law, the Subscription, including all Software updates, bug fixes, work arounds, or error corrections, 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.
(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, or data used by Reseller in connection with the Software 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 final court-ordered award of damages or settlement amounts against MongoDB to the extent resulting from 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 included in a Subscription infringes a third party’s copyright (a “Claim Against You”), MongoDB will defend Reseller against the Claim Against You at MongoDB’s expense and indemnify Reseller from any final court-ordered award of damages or settlement amounts against Reseller to the extent resulting from 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 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 made by anyone other than MongoDB; or (iv) MongoDB's compliance with any materials, designs, specifications or instructions provided by Reseller or your End User.
(c) Infringement Remedies. If the Software 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 for End User’s continued use of the Software; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate Reseller’s right to resell and distribute the Software and refund a prorated portion of the prepaid but unused fees paid for the Software.
(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 starts on the date that the parties sign an Order Form and continues until terminated in accordance with this Section 12 (the “Term”). Either party may terminate this Agreement if the other party breaches this Agreement and does not cure such breach within 30 days of written notice. 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 and Software. 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.
(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 franchise, joint venture, partnership, or any other relationship that imposes a fiduciary duty on either party to this Agreement or on 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. 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. Any reference to or use of a purchase order is for convenience, and any terms that govern the purchase order are of no effect.
(e) Notice and Communications. Notices under this Agreement will be in writing and effective on the delivery date. The parties will deliver notices by personal delivery or overnight courier to the address of the other party set forth on the 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.