This Subscription and Services Agreement (“Agreement”) is entered into by, as applicable, the customer signing this Agreement or any document that references this Agreement or that accepts this Agreement electronically (“Customer”) and 10gen Inc. (“10gen”). Capitalized terms have the meaning set forth in Section 10 or in the Agreement. This Agreement is effective as of the latest of the two signature dates below (“Effective Date”).
1. Scope of Work. 10gen shall provide the applicable Subscriptions, the Support and the Services set forth on the Order Form or in a SOW signed by both parties. Exhibit A describes the Subscriptions provided by 10gen, Exhibit B describes the Support provided by 10gen and Exhibit C describes the Services provided by 10gen.
2. Fees. Customer shall pay Fees set forth on the Order Form. In addition, Customer shall reimburse 10gen for any expenses incurred by 10gen personnel in providing the Services. Customer shall pay Fees and expenses within thirty (30) days of invoice, without deduction or setoff. Customer shall pay interest, at a rate equal to one percent (1%) per month on any amount that remains unpaid thirty (30) days after invoice. If Customer fails to pay Fees in accordance with this Section, 10gen may suspend fulfilling its obligations under this Agreement until such payment is received by 10gen. Customer shall pay directly any taxes arising out of 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. If any applicable law requires Customer to withhold amounts from any payments to 10gen under this Agreement, (a) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish 10gen with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, 10gen receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount 10gen would have received and retained absent the required deduction or withholding.
3. Publicity and Confidentiality.
3.1 Neither party will disclose, market or advertise to third parties the terms of this Agreement (including the Fees paid hereunder) without the prior written consent of the other party. 10gen will be permitted to reference its relationship with Customer on its website, during discussions with analysts, meetings with the press, customer briefings, or in regulatory filings. Customer will work with 10gen to release a mutually agreed upon press release.
3.2 For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” Confidential Information means all information concerning the parties’ business including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) the terms of any agreement between 10gen and Company and the discussions, negotiations and proposals related to that agreement. Confidential Information disclosed to the other party must be clearly identified. Written Confidential Information must be clearly marked in a conspicuous place with an appropriate legend identifying the information as confidential. Confidential Information that is not written must be identified before, during, or promptly after presentation or communication. The Recipient does not have an obligation to protect Confidential Information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient. If Confidential Information is required to be produced by law, court order, or governmental authority, the Recipient must immediately notify the Discloser of that obligation. The Recipient will use the Confidential Information only to further the relationship between the parties. Confidential Information may not be disclosed to any third party without the written consent of the Discloser. At the Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to the Discloser or destroyed by the Recipient. At the request of the Discloser, the Recipient will furnish a certificate, signed by an officer of the Recipient, certifying that any Confidential Information not returned to the Discloser has been destroyed. The Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that this right to Residuals does not represent a license under any intellectual property and/or proprietary rights of disclosing party.
4. Intellectual Property.
4.1 10gen shall own all intellectual property and proprietary rights in the: (i) Software, Documentation, and related works, including but not limited to derivative work of the foregoing; and (ii) deliverables provided by 10gen as part of the Services (“Deliverables”). 10gen grants to Customer a nonexclusive, non-transferrable, royalty-free license to use any Deliverables for Customer’s internal purposes.
4.2 Customer grants to 10gen a nonexclusive, non-transferable, royalty-free license to use Customer’s materials provided by Customer to 10gen during the Term of this Agreement solely for the purpose of performing the Services for Customer.
5. Warranty and Disclaimer.
5.1 10gen warrants that the Services and Support shall be performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services and Support. If Customer believes there has been a breach of this warranty, Customer must notify 10gen in writing promptly following delivery of the Services or Support stating in reasonable detail the nature of the alleged breach. If there has been a breach of this warranty, then 10gen’s sole obligation, and Customer’s exclusive remedy, shall be for 10gen to correct or re-perform, at no additional charge, any affected Services or Support to cause them to comply with this warranty.
5.2 EXCEPT AS PROVIDED IN SECTION 5.1 ABOVE, THE SOFTWARE, SUPPORT, AND SERVICES INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE 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, TITLE, 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, NEITHER THE SOFTWARE NOR THE UPDATES ARE 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.
6. Limitation of Liability.
6.1 IN NO EVENT WILL 10GEN BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED.
6.2 FOR ENTERPRISE SUBSCRIPTIONS ONLY IN NO EVENT WILL 10GEN’S CUMULATIVE LIABILITY EXCEED THE GREATER OF THREE MILLION DOLLARS ($3,000,000.00) OR THE AMOUNT OF FIVE (5) TIMES THE TOTAL FEES PAID TO 10GEN UNDER THIS AGREEMENT BY CUSTOMER FOR 10GEN’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT.
6.3 FOR ANY AND ALL OTHER CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT NOT COVERED BY SECTION 6.1 OR 6.2, IN NO EVENT WILL 10GEN’S CUMULATIVE LIABILITY EXCEED THE AMOUNT OF THE TOTAL FEES PAID TO 10GEN UNDER THIS AGREEMENT BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING ANY SUCH CLAIM.
6.4 IN NO EVENT SHALL 10GEN BE LIABLE TO CUSTOMER FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY CUSTOMER OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF 10GEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS PROVIDED IN THE GNU AFFERO GENERAL PUBLIC LICENSE, AS FOUND AT HTTP://WWW.GNU.ORG/LICENSES/AGPL-3.0.HTML.
6.5 THE PROVISIONS OF THIS SECTION 6 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND 10GEN. 10GEN’S FEES FOR THE SUBSCRIPTIONS, SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
7.1 For Enterprise Subscription or Standard Subscription only, 10gen shall defend Customer against any third party claim brought against Customer claiming that the Software as licensed under this Agreement and the applicable Order Form infringes such third party’s U.S. patent or copyright (“Infringement Claim”) and indemnify Customer from the resulting costs and damages awarded against Customer to the third party making such Infringement Claim, provided that Customer gives 10gen: (i) prompt written notice of the Infringement Claim, (ii) exclusive control over the defense and settlement of the Infringement Claim, and (iii) reasonable cooperation in connection with the defense and settlement of the Infringement Claim. Customer may reasonably participate in the defense of the Infringement Claim at its own expense. 10gen shall have no liability if the alleged infringement is based on: (a) combination of the Software with other software, data or business process, (b) use for a purpose or in a manner for which the Software was not designed, (c) use of any older release of the Software when use of a newer revision would have avoided the infringement, (d) any modification of the Software or Deliverables made by anyone other than 10gen, (e) any intellectual property right owned or licensed by Customer, excluding the Software and Deliverables, (f) 10gen's compliance with any materials, designs, specifications or instructions provided by Customer, (g) Customer's claim or lawsuit against a third party, (h) any third party open source software, or (i) Customer running the Software after 10gen notifies Customer to discontinue running due to a claim.
7.2 For Enterprise Subscription or Standard Subscription only, should any Software become, or in 10gen’s opinion be likely to become, the subject of such an Infringement Claim, 10gen shall, at its option and expense, (a) procure for Customer the right to make continued use of the Software, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Software and, upon receipt thereof, the corresponding licenses are terminated and 10gen shall refund a prorated portion of the prepaid but unused Fees paid for the applicable Subscriptions.
7.3 THIS SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND 10GEN’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
8. Term and Termination.
8.1 This Agreement shall be in effect until it is terminated as provided in this Section 8.1 (the "Term"). Unless otherwise stated on an Order Form, each Subscription shall have a term of one (1) year. Thereafter, the Subscription shall automatically renew for successive, one (1) year terms. Either party may elect not to renew a Subscription by providing written notice to the other party at least ninety (90) days prior to the end of the then-current term. The expiration or termination of this Agreement shall not affect any Order Form or SOW in effect on the date of expiration or termination. Either party may terminate this Agreement, Order Forms and SOWs in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice.
8.2 Sections 2, 3, 4, 5, 6, 8, 9 and 10 shall survive the expiration or termination of this Agreement.
8.3 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 the Software, Support and Subscriptions for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with 10gen and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount and Customer shall reimburse 10gen for the cost of the audit.
9.1 This Agreement shall be governed by the laws of the State of New York, excluding New York’s choice of law rules. For all disputes arising out of this Agreement, the parties consent to the jurisdiction of the courts serving New York County, New York.
9.2 Customer may not export or re-export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable.
9.3 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 shall be effective upon receipt.
9.4 This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, executed by both parties and expressly state that they are amending this Agreement. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Subscriptions, Support and Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
9.5 Failure to enforce any provision of this Agreement shall not constitute a waiver thereof. No waiver shall be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver shall not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions shall be interpreted to best accomplish the unenforceable provision’s essential purpose.
9.6 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, shall be subject in all respects to the license rights and restrictions provided in this Agreement.
9.7 Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded. Both parties hereto agree to use their best efforts to minimize the effects of such failures or delays.
“Basic Subscription” means the Support for the Community Edition as described in Exhibits A and B.
“Community Edition” means the Software which 10gen makes available under the AGPL or under a commercial license with the Standard Subscription or Enterprise Subscription as described in Exhibit A.
“Documentation” means the documentation made available by 10gen with the Software, which may be modified during the Term.
“Enterprise Edition” means the Software which 10gen makes available under a commercial license with the Enterprise Subscription as described in Exhibit A.
“Enterprise Subscription” means the annual license and Support for the Community Edition or Enterprise Edition as described in Exhibits A and B.
“Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation.
“Fees” mean the fees described in each Order Form or SOW.
“Order Form” means the ordering document for the Subscriptions, Support and Services.
“Production” means using the Software in a production and integration environment, generally using live data and/or applications for a purpose other than development, testing or Q&A.
“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.
“Residuals” means information that is retained in the unaided memories of Recipient’s employees, agents, or contractors as permitted herein who have had access to the Discloser’’s Confidential Information. Memory is unaided if the employee or contractor has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
“Server” is a single machine with no more than 512GB 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.
“Services” mean training and consulting services purchased by Customer as set forth on an Order Form and as described in Exhibit C.
“Software” means the applicable MongoDB software licensed under this Agreement and all Updates which 10gen makes available.
“SOW” means the statement of work describing the Services purchased by Customer.
“Stable Release” means a Minor Version designated with an even number (e.g., v 1.2). Minor Versions with odd numbers are not Stable Releases (e.g., v 1.3).
“Standard Subscription” means the annual license and Support for the Community Edition as described in Exhibits A and B.
“Subscriptions” means the annual Enterprise, Standard, or Basic Subscription purchased by Customer as described in Exhibits A and B.
“Support” means the level of support purchased by Customer as set forth on the Order Form and as described in Exhibit B.
“Update” means a Major Version, Minor Version or Maintenance Version of the Software made available by 10gen as part of Enterprise or Standard Subscriptions. "Major Version" means a later version of the Software identified by a change in the digit to the left of the left-most decimal point (X.x.x); "Minor Version" means a later version of the Software identified by a change in the middle number in between the two decimal points (x.X.x); and "Maintenance Version" means a later version of the Software identified by a change in the digit to the right of the right-most decimal point (x.x.X).
Agreed to and accepted by:
10GEN, INC. CUSTOMER
Name: _ Name:
10gen offers the following Subscription levels with respect to the Software: Enterprise, Standard, and Basic Subscriptions.
The provisions of this Section 2 apply only to the purchase of Enterprise Subscriptions: (i) During the term of the Subscription, 10gen grants to Customer a limited, non-exclusive, non-transferable license to use and reproduce the Enterprise Edition on Servers for which Customer has purchased a Subscription solely in connection with Customer’s internal business operations. Notwithstanding the foregoing, Customer may host the Software on behalf of its end users solely in conjunction with Customer’s applications; provided that Customer’s end users may not, at any time, access the Software directly. All of Customer’s Servers on which the Enterprise Edition is installed must be covered by the Enterprise Subscription. Upon termination or expiration of the Subscription, this Agreement and all licenses granted hereunder will terminate with respect to that Subscription. Following such termination or expiration of the Subscription, and upon thirty (30) days written notice by 10gen, Customer will provide written confirmation to 10gen that it has removed or uninstalled the Enterprise Edition from all of its Servers which were licensed under the Enterprise Subscription.
The provisions of this Section 3 apply only to the purchase of Standard Subscriptions: (i) During the term of the Subscription, 10gen grants to Customer a limited, non-exclusive, non-transferable license to use and reproduce the Community Edition on Servers for which Customer has purchased a Subscription solely in connection with Customer’s internal business operations. All of Customer’s Servers on which the Community Edition is installed must be covered by the Standard Subscription. Upon termination or expiation of the Subscription, this Agreement and all licenses granted hereunder will terminate with respect to that Subscription.
Customer shall not (and shall 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, in whole or in part, nor shall Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Software for any purpose, including timesharing or service bureau purposes, (c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, (d) remove any product identification, proprietary, copyright or other notices contained in the Software, (e) modify or create a derivative work of any encrypted or encoded portion of the Software, or any other portion of the Software, (f) publicly disseminate performance information or analysis including, without limitation benchmarking test results; (g) use the Software other than on Servers; or (h) change any proprietary rights notices which appear in the Software or Documentation. The Software may include individual open source software components, each of which has its own copyright and its own applicable license conditions. The open source software is licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Software. All Servers running such Software must be at the same Subscription level (i.e., Enterprise or Standard). Customer shall not use the Enterprise Subscription for any Servers which are not licensed under the Enterprise Subscription. If at any time during the Term, Customer: (a) increases the quantity of its Servers on which the Software is installed or (b) 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 applicable to such additional Servers beginning from the first date of such use.
10GEN SUPPORT POLICY
A description of Support is set forth at: http://www.10gen.com/legal/supportpolicy-march2013.
CONSULTING AND TRAINING SERVICES
1. 10gen shall perform the Services set forth on each Order Form or SOW signed by both parties. 2. Customer shall provide 10gen with reasonable assistance to facilitate the scheduling and performance of the Services. 3. Customer shall designate an engagement manager who shall be authorized to give or obtain all information, decisions and approvals of such party relating to the Services. 4. Services shall be deemed accepted when delivered unless otherwise set forth in the applicable Order Form or SOW. 5. Services not utilized within one (1) year of the applicable Order Form or SOW shall expire. 6. Services will be invoiced upon receipt of fully counter-signed Order Form.