By signing or accepting an ordering document for any of our subscriptions (“Order Form”), or by downloading our MongoDB Enterprise software for a free trial, you agree to this Subscription Agreement (“Agreement”). You represent you have the authority to agree to this Agreement on behalf of your organization. “MongoDB,” “we,” and “us” means the MongoDB entity that signs an Order Form, and “Customer,” “you” and “your” means the organization that signs an Order Form.
Subscriptions and Software. We will provide you with the subscriptions included in an Order Form. You may allow an affiliate (a company you control, are controlled by or under common control with) to use your subscriptions provided that you are responsible for your affiliate’s compliance with this Agreement. If you purchase an Enterprise Subscription, MongoDB grants you a nonexclusive and nontransferable license (except to your affiliates) during the term of the subscription to use and reproduce the MongoDB software included on an Order Form and all updates we make generally available (“Software”) on Servers for which you have purchased a subscription. A “Server” means (a) a single machine (dedicated server or server blade) with no more than 512GB of RAM that stores data, or (b) each instance that stores data if the deployment is a set of instances running in a public cloud. You may use the Software on servers with more than 512GB of RAM as long as you purchase the appropriate number of licenses based on 512GB of RAM. The Server environment is included on the Order Form. You may use the Software and your subscriptions only in connection with your internal operations. You may use the Software in connection with an application available to your end users as long as your end users cannot access the Software directly. You must cover all Servers on which the Software is installed at the same subscription level. Except as set forth in this Section 1, this Agreement does not transfer any right, title or interest in any intellectual property right from one party to the other. If you download our Software for a free trial, we grant you a limited, no-charge, nontransferable (except to your affiliates), and nonexclusive license to use the Software in your internal environment for development and evaluation purposes only. You will not use the Software for testing, QA, or in a production environment unless you purchase an Enterprise Subscription. Section 5 and Section 7(b) do not apply to your free trial of the Software for development and evaluation purposes, and you understand that we provide the free trial on an AS-IS basis.
Payment and Taxes. You will pay undisputed fees and reimburse any preapproved expenses as set forth on an Order Form. Your payment 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 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.
Your Responsibilities. 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 encrypted or encoded portion of the Software, (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Software or your subscription, (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 or your subscription, including benchmarking test results, or (g) use the Software other than on the Servers identified on the Order Form. The Software includes open source software components, each of which has the copyright and applicable license conditions included in the licenses file, the documentation or other materials accompanying the Software. You will comply with all applicable laws in connection with your use of the Software and your subscriptions, including any applicable U.S. Export Administration Regulations, anti-corruption laws and U.S. embargoes.
Confidentiality and Publicity. If the parties have entered into a Non-Disclosure Agreement (“NDA”), this Agreement incorporates the NDA. If the parties have not signed an NDA, neither party will: (a) disclose the other party’s Confidential Information to any third party without the other party’s prior consent or as required by law, or (b) use the other party’s Confidential Information for any purpose except performing this Agreement or furthering the relationship between the parties. “Confidential Information” means information a party designates as confidential or reasonably considers to be confidential, and includes the pricing information on an Order Form. Confidential Information does not include information (a) that is or becomes publicly available through no fault of recipient or (b) received from a third party without a duty of confidentiality. Each party will return or destroy the other party’s Confidential Information upon written request. Unless you tell us otherwise in writing, we may refer to our relationship with you as a customer, including on our website.
Warranties. MongoDB represents and warrants that it will perform services included in a subscription in a diligent and workmanlike manner consistent with industry standards, and that the Software will perform substantially in accordance with the documentation. Your exclusive remedy for MongoDB’s breach of warranty is to terminate any affected Order Form in accordance with Section 8 and receive a refund of any prepaid fees for unused subscriptions. Except as expressly stated in this Agreement, we provide subscriptions and Software 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.
Limitation of Liability.
(a) Except as set forth in Section 6(b), and except for use of the Software on Servers not covered by a license, 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 to MongoDB during the 12-month period before the event giving rise to the liability.
(b) For an Advanced Enterprise Subscription, MongoDB’s cumulative liability for any indemnification claim 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. Nothing in this Agreement limits either party’s liability for gross negligence or intentional misconduct, or for death or personal injury.
(a) Customer Indemnification. Customer will defend and indemnify MongoDB from and against all third party claims to the extent resulting from the infringement of a third party’s intellectual property or other right by software, hardware, content, or data used by Customer in connection with the Software or any subscription. Customer will have no obligation to defend or indemnify MongoDB if the claim is based on MongoDB’s unauthorized changes to Customer’s content, data or other information.
(b)MongoDB Indemnification. If Customer purchases an Enterprise Subscription, subject to the terms of this Agreement, MongoDB will defend and indemnify Customer from and against all third party claims to the extent resulting from the Software’s infringement of a third party’s intellectual property right. MongoDB will not be obligated to defend or indemnify Customer if the claim is based on: (i) combination of the Software with other software, content, data or business process not contemplated by documentation, (ii) use of any older release of the Software when use of a newer revision would have avoided the infringement, (iii) any modification of the Software made by anyone other than MongoDB, (iv) MongoDB's compliance with any materials, designs, specifications or instructions provided by Customer, or (v) any third party open source software included within the Software.
(c) Infringement Remedies. If the Software becomes, or in MongoDB’s opinion is likely to become, the subject of an infringement claim, MongoDB will 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 Software, (ii) replace or modify the Software so that it becomes non-infringing, or (iii) terminate Customer’s license to the Software and refund a prorated portion of the prepaid but unused fees paid for the applicable subscriptions.
(d) Indemnification Procedures. Each party will provide the other with prompt notice of any claim, provided that 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 to the extent that the failure to provide notice materially harms the party’s ability to defend the claim. The indemnifying party will 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, and may participate in the defense at its own expense. This Section 7 sets forth each party’s exclusive remedy for any third party infringement claim.
Term and Termination. This Agreement commences on the date that the parties sign an Order Form and continues until your subscriptions included in the Order Form expire or either party terminates this Agreement earlier in accordance with this Section. If all Order Forms under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing written notice. Either party may terminate this Agreement and any applicable Order Form if the other party materially breaches this Agreement and does not cure such breach within 30 days of written notice. Upon termination of this Agreement, you will remove the Software from all Servers or continue to use the Software under the applicable open source license. Provisions intended by their nature to survive termination of this Agreement survive termination. During the Term and one year following termination, we may inspect your records relating to your use of the Software or services for the purposes of verifying compliance with this Agreement.
General. 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. If Customer provides any feedback on MongoDB’s subscriptions, MongoDB may use and modify Customer’s feedback without restriction or payment. 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. 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. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect 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. The parties may sign this Agreement electronically and in counterparts, each of which is deemed to be an original and all of which taken together comprise a single document. This Agreement and any signed Order Form comprise the parties’ entire agreement relating to MongoDB’s provision of services and subscriptions to Customer, and any reference to or use of Customer’s purchase order is for your convenience, and the terms that govern your purchase order are of no effect. Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control.