10gen Technology Evaluation Agreement

BY INSTALLING OR USING 10GEN'S MONGO DB PRODUCT (“PRODUCT”), YOU ARE AGREEING ON BEHALF OF THE ENTITY LICENSING THE PRODUCT ("LICENSEE") THAT LICENSEE WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS 10GEN TECHNOLOGY EVALUATION AGREEMENT  ("AGREEMENT") AND THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PRODUCT. LICENSEE HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE PRODUCT UNLESS AND UNTIL IT AGREES TO BE BOUND BY THESE LICENSE TERMS. THE "EFFECTIVE DATE" FOR THIS AGREEMENT SHALL BE THE DAY YOU INSTALL OR USE THE PRODUCT.   IF LICENSEE HAS ENTERED INTO A SEPARATE LICENSE AGREEMENT WITH 10GEN FOR THE PRODUCT, THE TERMS OF THIS 10GEN TECHNOLOGY EVALUATION AGREEMENT WILL NOT APPLY.

1. GRANT OF LICENSE.
1.1      The License.  Subject to the terms of this Agreement, 10gen grants to Licensee a personal, non-exclusive, non-transferable, limited license to install the Product on computers owned or controlled by Licensee and to use the Product and related materials (“Materials”) for Licensee’s internal business use to evaluate, test and perform internal pilot projects with the Product and Materials solely to determine their suitability for Licensee’s business requirements.
1.2 License Conditions.  10gen owns all right, title and interest in and to the Product, the Materials and any modifications to the Product and the Materials.  Licensee shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) use the Product in a production environment or for any purpose other than for evaluation purposes;  (ii) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Product or the Materials to a third party; (iii) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Product; (iv) allow access or permit use of the Product by any users other than employees and contractors or Licensee;  (v) 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 Product; (vi) modify or create derivative works based upon the Product; or (vii) disclose the results of any benchmark test of the Product to any third party without 10gen’s prior written approval.  Licensee will configure its operating environment to prevent the evaluation from causing business interruption or loss of Licensee data.

2. WARRANTY DISCLAIMER. 10GEN EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS AND UNDERTAKINGS WITH RESPECT TO THE PRODUCT AND MATERIALS AND THEIR PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  
3. LIABILITY. 
3.1 LIMITATION OF LIABILITY. 10GEN AND ITS LICENSORS SHALL NOT HAVE LIABILITY FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANY OTHER CLAUSE IN THIS AGREEMENT, 10GEN’S AND ITS LICENSOR’S TOTAL AGGREGATE LIABILITY, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY 10GEN IN AN AMOUNT NOT TO EXCEED TEN THOUSAND DOLLARS (US $10,000). 
3.2 Allocation of Risk. The provisions of this Section 3 allocate risks under this Agreement between Licensee and 10gen.  The foregoing limitations, exclusions and disclaimers apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.

4. TERM AND TERMINATION. The term of this Agreement will begin and end on the date Effective Date and will continue for a period of one (1) year. This Agreement may be terminated at any time by either party upon thirty (30) days' prior written notice to the other party.  Upon termination or expiration of this Agreement, the Product and all Materials must be promptly de-installed and destroyed, unless the parties have entered into a further license agreement. Termination will not affect any claim, liability or right arising prior to termination. Sections 2, 3, 4 and 5 will survive the expiration or termination of this Agreement.

5. GENERAL.

5.1 Independent Parties.  Neither Licensee nor 10gen is a legal representative, partner or agent of the other.

5.2 Entirety.  This Agreement represents the entire agreement of the parties with regard to the Product and Materials and supersedes all other agreements related to this subject matter.  Delivery of an executed counterpart of this Agreement by facsimile, email or any other reliable means shall be deemed to be as effective for all purposes as delivery of the manually executed counterpart.  This Agreement may not be amended except in writing signed by both parties. 

5.3 Assignment.  Licensee may not assign this Agreement or otherwise transfer the use of any Product, whether by operation of law or otherwise, without the prior written consent of 10gen.

5.4 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be sent to each company’s corporate headquarters and is effective when received.

5.5 Waiver.  Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.  Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. 

5.6 Severability.  If any provision in this Agreement (including, without limitation, the prohibition on de-compiling or reverse engineering) is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

5.7 Government Regulations.  Licensee may not export or re-export the Product 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.  The Product and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable.  Any use, modification, reproduction, release, performing, displaying or disclosing of the Product and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.

5.8 Jurisdiction.  This Agreement will be governed by the laws of New York without regard for its choice of law provision.  The parties agree to irrevocably submit to the exclusive jurisdiction of the state or federal courts located in New York and waive all objections thereto.




