By signing an Order Form or a SOW that references this Customer Agreement (this “Agreement”), or by downloading our Software for a free trial, 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 directly or indirectly 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 the pricing information on an Order Form or SOW. 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,” “you” and “your” means the organization that signs an Order Form or SOW or downloads the Software for a free trial.
“Deliverable” means any item or deliverable provided to you as a part of the Services, including any report.
“MongoDB,” “we” and “us” means the MongoDB company that signs an Order Form or SOW, or if you download our Software for a free trial, MongoDB, Inc.
“Order Form” means an ordering document for subscriptions that refers to this Agreement signed by both parties or submitted to us online.
“Server” means each 512GB 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). The number of Servers requiring coverage for use of a subscription in a private cloud is the lesser of: (1) the RAM of each physical server, dedicated server and server blade utilized divided by 512GB with any remainder rounded up on a per server basis; or (2) the RAM allocated to each instance divided by 512GB with any remainder rounded up on a per instance basis.
“Services” means the services included as part of your subscription set forth in an Order Form or as part of our services set forth on a SOW.
“Software” means the MongoDB Enterprise database software, our Ops Manager software and any other software included with your 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.
“SOW” means a statement of work for Services signed by both parties that refers to this Agreement.
“Support” means support, if any, included in your subscription.
(a) Generally. We will provide you with the Software, Support and Services included in your subscription set forth on an Order Form. We will provide you with Support in accordance with our generally 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. 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.
(b) Free Evaluation and Development License. If you download our Software for a free trial, MongoDB grants you a royalty-free, nontransferable (except to your Affiliates), and nonexclusive license to use and reproduce the Software in your internal environment for evaluation and development purposes. You will not use the Software for any other purpose, including testing, quality assurance or production purposes without purchasing an Enterprise Advanced Subscription. We provide the free trial of our Software on an AS-IS basis without any warranty.
(c) Development Support Subscription. If you purchase a Development Support Subscription, 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 your internal environment for development purposes for one application or project. You will not use the Software for testing, quality assurance or production purposes without purchasing an Enterprise Advanced Subscription.
(d) Enterprise Advanced Subscription. If you purchase an Enterprise Advanced Subscription, 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 your internal environment for testing and quality assurance purposes and/or production purposes (as indicated on an Order Form) on the number of Servers set forth on the Order Form. If you purchase an Enterprise Advanced Subscription for testing and quality assurance purposes only, you will sign an Order Form for the Enterprise Advanced Subscription for a production environment before moving your application into a production environment.
(e) Production Support Subscription. You will cover all Servers used in connection with the application for which you purchase the Production Support Subscription, and you understand that your license to MongoDB’s database software is pursuant to the AGPL v3 open source license. If you purchase a Production Support Subscription for testing and quality assurance purposes only, you will sign an Order Form for Production Support for a production environment before moving your application into a production environment.
(f) Consulting and Training Subscriptions. We offer various consulting and training subscriptions, the description of which is set forth on an Order Form. You will assign a work manager to help ensure effective delivery of the Services included in your subscription. 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.
3. Services. We will perform the Services set forth in a SOW. Customer will provide MongoDB with reasonable assistance to facilitate scheduling and performance of Services and with information required to perform the Services. We are not responsible for failing to provide Services if caused by your failure to provide such reasonable assistance or information. You will designate an engagement manager to provide information, make decisions and obtain approvals relating to the Services. Services are accepted when delivered unless otherwise set forth in a SOW. If a SOW includes an acceptance period, your failure to notify us of your acceptance or rejection within the period identified in the SOW will be deemed an acceptance of our Services and any Deliverables. 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.
4. 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, your subscription, or any Deliverables, provided you may use the Software in connection with an application available to your end customers as long as they cannot access the Software directly; (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; (g) use the Software on more Servers than licensed on an Order Form, or use any support included in any subscription for an unsupported application; or (h) use our Ops Manager software included as a part of your Enterprise Advanced Subscription in connection with any Server or application that is not covered by an Enterprise Advanced Subscription. You will comply with all applicable laws in connection with your use of Software, Deliverables, Services and your subscriptions, including any applicable U.S. Export Administration Regulations, anti-corruption laws and U.S. embargoes.
5. Payment and Taxes. You will pay undisputed fees and reimburse any preapproved expenses as set forth on and in accordance with an Order Form or SOW. Your payment for our subscriptions is non-refundable and you may not cancel an Order Form except as stated in this Agreement. Your payment obligations for Services will be set forth in a SOW. 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.
6. 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. 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.
7. 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 disclose the other party’s Confidential Information to any third party without the other party’s prior written consent or except as required by law, or use the other party’s Confidential Information for any purpose except performing this Agreement or furthering the relationship between the parties. Each party will return or destroy the other party’s Confidential Information upon written request from the other party. Unless you tell us otherwise in writing, we may refer to our relationship with you as a customer.
8. Warranties. MongoDB represents and warrants that it will perform Services in a diligent and workmanlike manner consistent with industry standards, and 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 or SOW in accordance with Section 11 and receive a refund of any prepaid fees for unused subscriptions or Services. Except as stated in this Agreement, we provide subscriptions, Services 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.
9. Limitation of Liability.
(a) Except as set forth in Section 9(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 Enterprise Advanced 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 or provided to MongoDB in order for MongoDB to perform Services. 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. 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 or any Deliverable’s infringement of a third party’s copyright. 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; or (iv) MongoDB's compliance with any materials, designs, specifications or instructions provided by Customer.
(c) Infringement Remedies. If the Software or any Deliverable 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 or Deliverable; (ii) replace or modify the Software or Deliverable so that it becomes non-infringing; or (iii) terminate Customer’s license to the Software or Deliverable 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. 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 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 10 sets forth each party’s exclusive remedy for any third party infringement claim.
11. Term and Termination. This Agreement starts on the date that the parties sign an Order Form or SOW, or you download our Software for a free trial, and continues until either party terminates this Agreement in accordance with this Section 11. If all Order Forms and SOWs under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing 30 days’ prior written notice. You may not terminate an Order Form for convenience and any termination for convenience right for any SOW will be set forth in the SOW. Either party may terminate this Agreement and any applicable Order Form or SOW if the other party materially breaches this Agreement and does not cure such breach within 30 days after receipt of written notice of the breach. Upon termination of this Agreement, you will remove the Software from all Servers. 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.
12. 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 or in a SOW. 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, 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. 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 Order Form and SOW 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. Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control.