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 MongoDB Limited (formerly 10gen/MongoDB Limited), with principal place of business at Latin Hall, 5th Floor, Golden Lane, Dublin 8, Ireland (Company). 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. Company will provide the applicable Subscriptions and the Services set forth on the Order Form or in a SOW signed by both parties. A description of Subscriptions and Services offered by Company is available at: http://www.mongodb.com/legal/productschedule, which is incorporated by reference into this Agreement and which may be modified from time to time in Company’s sole discretion, provided that any modifications will not affect in a material reduction in Subscriptions and Services under an applicable Order Form or SOW. A description of Support is set forth at: http://www.mongodb.com/legal/supportpolicy-march2013, which is incorporated by reference into this Agreement.
2. Fees. Customer will pay Fees set forth on the Order Form. In addition, Customer will reimburse Company for any expenses incurred by Company personnel in providing the Services. If Customer has travel reimbursement policies, Customer must provide them to Company withing five (5) business days of the effective date of the applicable Order Form or SOW. Customer will pay Fees and expenses within thirty (30) days of invoice, without deduction or setoff. Customer will 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, Company may suspend fulfilling its obligations under this Agreement until such payment is received by Company. All Fees are non-refundable and exclusive of applicable taxes and/or VAT. Customer will 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 Company’s net income and all employer reporting and payment obligations with respect to Company’s personnel. If any applicable law requires Customer to withhold amounts from any payments to Company under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Company with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Company receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Company would have received and retained absent the required deduction or withholding.
3.1 For Software licensed under a commercial license, Company grants to Customer a limited, non-exclusive, non-transferable license during the term of the Subscription to use and reproduce the Software Edition on Servers for which Customer has purchased a Subscription solely in connection with Customer’s internal operations.
3.2 Notwithstanding anything to the contrary in the foregoing Sections 3.1, for Software licensed under a commercial license, 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 Software is installed must be covered by the same Subscription level. 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 Company, Customer will provide written confirmation to Company that it has: (a) removed or uninstalled the Software from all of its Servers which were licensed under a commercial license or (b) is using the Software under an open source license made available by Company.
3.3 Customer 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, in whole or in part, nor will 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. Customer will not use the Software for any Servers which are not licensed under an Order Form. If at any time during the Term, Customer: (a) increases the quantity of its Servers on which the Software is installed or (b) upgrades the Server environment, no later than thirty (30) days after each such addition or upgrade Customer will notify Company and pay the applicable Fees beginning from the first date of such use.
4.1 Company will perform the Services set forth on each Order Form or SOW signed by both parties.
4.2 Customer will provide Company with reasonable assistance to facilitate the scheduling and performance of the Services. Customer will designate an engagement manager who will be authorized to give or obtain all information, decisions and approvals of such party relating to the Services.
4.3 Services will be deemed accepted when delivered unless otherwise set forth in the applicable Order Form or SOW. Services must be used within the term set forth on the applicable Order Form or SOW. Services not utilized within the term of the applicable Order Form or SOW will expire. Services will be invoiced upon receipt of fully counter-signed Order Form.
5. Publicity and Confidentiality.
5.1 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. Company 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 Company to release a mutually agreed upon press release.
5.2 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 Company and the Customer and the discussions, negotiations and proposals related to that agreement.
5.3 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 as Confidential Information 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 (subject to legal prohibition) 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 certify in writing 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.
6. Intellectual Property.
6.1 Company will own all intellectual property and proprietary rights in the: (a) Software, Documentation, and related works, including but not limited to any derivative work of the foregoing; and (b) deliverables provided by Company as part of the Services (Deliverables). Company grants to Customer a nonexclusive, non-transferrable, royalty-free license to use any Deliverables for Customer’s internal purposes.
6.2 For the Term, Customer grants to Company a nonexclusive, non-transferable, royalty-free license to use Customer’s materials provided by Customer to Company during the Term solely for the purpose of performing the Services for Customer.
7. Warranty and Disclaimer.
7.1 Company warrants that the Services and Support will 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 Company in writing promptly following delivery of the relevant Services or Support stating in reasonable detail the nature of the alleged breach. If there has been a breach of this warranty, then Company’s sole obligation, and Customer’s exclusive remedy, will be for Company to correct or re-perform, at no additional charge, any affected Services or Support to cause them to comply with this warranty.
7.2 EXCEPT AS PROVIDED IN SECTION 7.1 ABOVE, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, 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 FACILITIES OR ENVIRONMENTS REQUIRING FAILSAFE PERFORMANCE, SUCH AS NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS. THE CUSTOMER SHALL NOT USE THE SOFTWARE OR UPDATES IN SUCH HAZARDOUS ENVIRONMENTS AND, TO THE EXTENT IT DOES, IT EXPRESSLY ASSUMES ALL RISK FOR SUCH.
8. Limitation of Liability.
8.1 IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 FOR ENTERPRISE SUBSCRIPTIONS ONLY, IN NO EVENT WILL COMPANY’S AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY FOR COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT EXCEED THE GREATER OF: (i) TWO MILLION EURO (€ 2,000,000), OR (ii) THE AMOUNT OF FIVE (5) TIMES THE TOTAL FEES PAID TO COMPANY UNDER THIS AGREEMENT BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
8.3 FOR ANY AND ALL OTHER EVENTS AND CIRCUMSTANCES NOT COVERED BY SECTIONS 8.1 OR 8.2 (INCLUDING COMPANY’S INDEMNIFICATION OBLIGATIONS IN RESPECT OF STANDARD SUBSCRIPTIONS UNDER SECTION 7 OF THIS AGREEMENT), COMPANY AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON- PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
8.4 THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND COMPANY. COMPANY’S FEES FOR THE SUBSCRIPTIONS, SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
9.1 For Software licensed under a commercial license only, Company will defend Customer against any third party claim brought against Customer claiming that such Software as licensed under this Agreement and referenced in the applicable Order Form infringes such third party’s patent or copyright valid and enforceable in the European Union (Infringement Claim) and indemnify Customer from the resulting costs and damages awarded by a court of competent jurisdiction against Customer to the third party making such Infringement Claim, provided that Customer gives Company: (a) prompt written notice of the Infringement Claim, (b) exclusive control over the defense and settlement of the Infringement Claim, and (c) 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. Company will have no liability if the alleged infringement is based on: (i) combination of the Software with other software, data or business process, (ii) use for a purpose or in a manner for which the Software was not designed, (iii) use of any older release of the Software when use of a newer revision would have avoided the infringement, (iv) any modification of the Software or Deliverables made by anyone other than Company, (v) any intellectual property right owned or licensed by Customer, excluding the Software and Deliverables, (vi) Company's compliance with any materials, designs, specifications or instructions provided by Customer, (vii) Customer's claim or lawsuit against a third party, (viii) any third party open source software, or (ix) Customer running the Software after Company notifies Customer to discontinue running due to a claim.
9.2 For Software licensed under a commercial license, should such Software become, or in Company’s opinion be likely to become, the subject of such an Infringement Claim, Company will, 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 Company will refund a prorated portion of the prepaid but unused Fees paid for the applicable Subscriptions.
9.3 THIS SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR EACH AND EVERY INFRINGEMENT CLAIMS.
10. Term and Termination.
10.1 This Agreement will be in effect for the term set forth on such Order Form for the applicable Subscriptions and Services unless earlier terminated as provided herein or therein (the Term). Unless otherwise stated on an Order Form, each Subscription will have a term of one (1) year. The expiration or termination of this Agreement will not affect any Order Form or SOW in effect on the date of expiration or termination. In addition, either party may terminate this Agreement, Order Forms and SOWs with immediate effect: (a) in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice, (b) in the event that the other party ceases business, becomes insolvent or bankrupt or if a receiver, examiner, administrator or administrative receiver is appointed over any part of that party’s business or if anything analogous occurs in relation to that party under the laws of another jurisdiction, or (c) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings in relation to such party.
10.2 Sections 2 and 5-12 will survive the expiration or termination of this Agreement.
10.3 Audit. During the Term and for one (1) year following termination or expiration (but no more than once in a calendar year), Company 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 will cooperate fully with Company and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer will promptly pay such amount and Customer will reimburse Company for the cost of the audit.
11.1 This Agreement and any dispute relating to, or arising out of this Agreement or its formation or termination or actions or omissions contemplated by this Agreement, will be governed by and in accordance with the laws of Ireland, without giving effect to the conflict of laws provisions of the United Nations Convention for Contracts for the International Sale of Goods. For all disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction of the Irish courts.
11.2 Unless otherwise specified in this Agreement, all notices will be in writing and will 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.
11.3 This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its affiliate, subsidiary or as a result of a merger or a sale of all or substantially all of such party’s assets or stock without the prior approval of the other party.
11.4 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 will 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.
11.5 Failure to enforce any provision of this Agreement will not constitute a waiver thereof. 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. If any provision is found to be unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
11.6 Neither party will 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.
Affiliate(s) means any company controlling, controlled by or under common control with a party, where control shall mean ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in this company.
Documentation means the documentation made available by Company with the Software, which may be modified from time to time.
Enterprise Subscription means the Subscription for Enterprise Edition, as set forth on the Order Form.
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 and Services.
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. The Server environment is set forth on the Order Form.
Services mean training and consulting services purchased by Customer as set forth on an Order Form.
Software means the applicable MongoDB software licensed under this Agreement and all Updates which Company makes available.
Software Edition means the edition of the Software made available by Company as part of the applicable Subscription.
SOW means the statement of work describing the Services purchased by Customer.
Subscriptions means the subscription purchased by Customer as set forth on the Order Form.
Support means the level of support in the Subscription purchased by Customer as set forth on the Order Form.
Update means a Major Version, Minor Version or Maintenance Version of the Software made available by Company as part of 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).