Master Services Agreement
Last Revised: February 18, 2014
(updated February 29, 2016 to reflect name change from "MongoLab" to "mLab")
1. Your Agreement with mLab
1.1. This Master Services Agreement (this "Agreement") is entered into by and between ObjectLabs Corporation (henceforth "mLab"), including its subsidiaries and affiliates involved in providing the Services (together, "mLab" or "we") and you, the individual or legal entity ("Customer" or "you") that wishes to access and use mLab's no-cost services or to purchase mLab Subscription Services (defined below) (together, the "Service"). Your use of and access to the Service is governed by this Agreement, which includes the mLab Terms of Service, Acceptable Use Policy, and, for purchasers of select High Availability Plans, the Service Level Agreement ("SLA").
1.2. This Agreement constitutes a legally binding contract between mLab and Customers. By clicking the "I Accept" button (or comparable acknowledgment option), you are indicating that you have read, understand, and agree to be bound by the terms and conditions of this Agreement. If Customer is an individual, you represent and warrant that you have the legal right to enter into this Agreement. If Customer is a legal entity, you represent and warrant that you have the authority to bind the Customer. If you (i) do not have the authority to bind the Customer; or (ii) do not agree to be bound by all the terms and conditions of this Agreement, then neither you nor the legal entity you may represent are permitted to purchase, access, or use the Services and you should not click the "I Accept" button (or comparable acknowledgment option). Your permission to access and use the Services is conditioned on your continued and uninterrupted compliance with the terms and conditions of this Agreement.
2. Your Account and Use of the Service
2.1. You will be required to provide registration information and create a mlab.com account (your "Account") in order to access and use the Services. All registration information that you provide must be kept accurate, current, and complete at the time you register and throughout your use of the Service. You agree to promptly update your registration information, if any such information becomes inaccurate or obsolete.
2.2. You are responsible for the security of your passwords and all other credentials used for accessing your Account or the Service and for any use (authorized or unauthorized) of your Account or the Service under your passwords or credentials. If you become aware of any unauthorized use of your password, credentials, or Account, you agree to notify mLab immediately.
2.3. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
3. Subscription Services, Fees, and Payment
3.1. mLab makes certain features, services, and support available for purchase on a monthly basis by Account holders (certain "Subscription Services"). mLab calculates and bills fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. Fees for partial months of access to Subscription Services will be pro-rated based on the number of days the Subscription Services were made available to you. You will pay us the applicable fees and charges for use of the Subscription Services using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Subscription Services or new feature of a Subscription Service will be effective when we post updated fees and charges on https://mlab.com or any successor or related site designated by us (our "Site") unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least thirty (30) days' advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
3.2. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
4.1. The current version of the mLab Terms of Service is available for review at https://mlab.com/company/legal/tos and is incorporated herein by reference. You agree to comply with and be bound with the Terms of Service with respect to your access to and use of the Services. Please review the Terms of Service carefully before clicking the "I Accept" button (or comparable acknowledgment option).
4.2. The current version of the mLab Acceptable Use Policy is available for review at https://mlab.com/company/legal/aup and is incorporated herein by reference. You agree to comply with and be bound with the Acceptable Use Policy with respect to your access to and use of the Services. Please review the Acceptable Use Policy carefully before clicking the "I Accept" button (or comparable acknowledgment option).
4.4. The current version of the SLA is provided as an attachment to this Agreement and is incorporated herein by reference. The SLA applies to select High Availability Plans that are billed directly by mLab. Please review the SLA carefully prior to purchasing any High Availability Plans, as mLab's provisions of select High Availability Plans will be subject to the terms and conditions of the SLA.
5. Modification and Termination of the Agreement
5.1. mLab may make changes to this Agreement from time to time at its sole discretion. When these changes are made, mLab will make a new copy of the agreement available through your Account accessible at the Site. The revised Agreement will identify the date the Agreement was last revised.
5.2. You acknowledge and agree that your continued access to or use of the Service after the date on which the revised Agreement has been made available through your Account will indicate your acceptance of the revised Agreement. If you do not accept the revised Agreement, your only recourse is to stop using the Service and terminate this Agreement. If your acceptance of the Agreement by continued access or use of the Service is found to be contrary to law or public policy or unenforceable by a court of competent jurisdiction, then the most recent version of the Agreement that is enforceable and not contrary to law or public policy will be deemed to have remained in effect and to govern your use of the Services.
5.3. You may terminate this Agreement at any time by deleting all Your Content, discontinuing your use of the Service and closing your Account. mLab may, at any time and at its sole discretion, terminate your use of the Service if (A) you have breached any provision of the Agreement (or mLab reasonably believes that you do not intend to or are unable to comply with the provisions of the Agreement); (B) mLab is required to do so by law (for example, due to a change to the law governing the provision of the Service); (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires mLab to change the way mLab provides the data or services through the Service; (D) providing the Service could create a substantial economic burden as determined by mLab in its reasonable good faith judgment; (E) providing the Service could create a security risk or material technical burden as determined by mLab in its reasonable good faith judgment; (F) mLab ceases commercially offering or provisioning all or a portion of the Service; or (G) you are in arrears with respect to any payment due to mLab under this Agreement. Termination of this Agreement shall also terminate the Terms of Service.
5.4. Sections 5.4, 6, and 7 of this Agreement and all Sections of the Terms of Service that are identified therein as surviving termination shall survive termination of this Agreement.
6. General Legal Terms
6.1. There are no third party beneficiaries to the Agreement. The parties are independent contractors, and nothing in these Agreement creates an agency, partnership or joint venture. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
6.2. You may not assign or transfer this Agreement, in whole or in part, without mLab's prior written consent. Any attempted assignment or transfer in violation of this Section will be null, void, and without effect. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
6.3. You agree that mLab may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the Service. If you have provided mLab with your email address, you acknowledge and agree that mLab may send you any notices required by law by email instead of by regular mail.
6.4. You agree that if mLab does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which mLab has the benefit of under any applicable law), this will not be taken to be a formal waiver of mLab's rights and that those rights or remedies will still be available to mLab.
6.5. mLab shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
6.6. This Agreement, and your relationship with mLab under this Agreement, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and mLab agree to submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that mLab shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
6.7. If any provision of this Agreement is found to be contrary to law or public policy by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law or public policy in order to agree on a substitute provision.
6.8. If mLab provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict between the English and translated versions.
6.9. This Agreement together with the attachments hereto and incorporations by reference constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
6.10. The headings in this Agreement are for the convenience of reference only and have no legal effect.
Attachment A: Service Level Agreement ("SLA")
This SLA applies only to those portions of the service provided under mLab Production Plans that are directly billed by mLab and have been defined by mLab as High Availability Plans, where each node is on a Dedicated Virtual Machine with greater than 3GB of RAM. "High Availability Plans" include only Replica Set Clusters and Sharded Clusters where each shard is a Replica Set with the requisite number of data-bearing nodes. The requisite number of data-bearing nodes is two unless the storage used for each node is considered ephemeral, in which case the number of requisite nodes is three. We reserve the right to change the terms of this SLA in accordance with this Agreement.
We will use commercially reasonable efforts to make your MongoDB Deployments (defined below) High Availability Plan available with a Monthly Uptime Percentage of at least 99.95%, in each case during any monthly billing cycle (the "Service Commitment"). In the event that we do not meet the Service Commitment, you may be eligible to receive a Service Credit as described below.
"MongoDB Deployment" means the MongoDB Replica Set Cluster or Sharded Cluster that we provide to you under a High Availability Plan.
"Monthly Uptime Percentage" for a monthly billing cycle is calculated by subtracting from 100% the percentage of minutes during the month in which your MongoDB Deployment was in a state of "Unavailability", excluding any period of "Excused Unavailability".
For a 31-day month in which there is 150 minutes of Unavailability of which 50 minutes are Excused Unavailability:
Monthly Uptime Percentage = 100% - 100min / (31 days*24 hours/day *60 min/hour) = 99.776%
"Unavailable" and "Unavailability" means that at least one Replica Set Cluster of a MongoDB Deployment has no reachable member that is in the state PRIMARY for a period of 5 minutes.
"Excused Unavailability" means any Unavailability that (i) occurs during an Excused Maintenance Period or (ii) is caused by or results from: (a) our suspension or termination of your right to use the Service in accordance with this Agreement; (b) factors outside of our reasonable control, including, without limitation, force majeure events and network, Internet, or other access or availability problems beyond the demarcation point of mLab; (c) your or any third party's action or inaction, including without limitation failure to properly configure system components; (d) third-party equipment, software, hardware, or technology that is not in our direct control.
"Excused Maintenance Period" means any Unavailability period during which we are performing (i) scheduled maintenance of your MongoDB Deployment; or (ii) unscheduled maintenance of your MongoDB Deployment of which you have been furnished at least twenty-four (24) hours advance notice.
"Service Credit" is a dollar credit, calculated as a percentage of the fees paid during the applicable monthly billing cycle for the affected MongoDB Replica Set Cluster or Sharded Cluster for which the Unavailability is experienced.
|Monthly Uptime Percentage||Service Credit Percentage|
|Less than 99.95% but equal to or greater than 99.0%||10%|
|Less than 99.0%||30%|
If: (i) the Monthly Uptime Percentage for a monthly billing cycle for which you have purchased and fully paid for Services is less than the Service Commitment (99.95%); (ii) you are current on all payments at the time the reported Unavailability occurred; and (iii) you have not been late on payments more than two (2) times in the last twelve (12) months, we will apply a Service Credit against future payments otherwise due from you to mLab. At our discretion, we may alternatively issue the Service Credit to the credit card you used to pay for the monthly billing cycle in which the Unavailability occurred. Service Credits issued to you may not be transferred or applied to any other account. Unless otherwise provided in this Agreement, your sole and exclusive remedy for any Unavailability, non-performance, or other failure by us to provide the Service is the receipt of a Service Credit (if you are eligible) in accordance with the terms of this SLA.
To receive a Service Credit, you must submit a claim by emailing us at email@example.com. To be eligible, the credit request must be received by us within thirty (30) days of the Unavailability and must include:
- the words "SLA Credit Request" in the subject line;
- the dates and times of each Unavailability incident that you are claiming;
- the name of the applicable High Availability plan and affected cluster id(s); and
- sufficient evidence and detailed information outlining the impact, including but not limited to duration of the event, log files, ping metrics, and other availability metrics from third parties.
If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment and you are eligible to receive a Service Credit (as described above), then we will issue the Service Credit to you within one billing cycle following the month in which your request is approved by us. Your failure to provide the request and other information within thirty (30) days of the Unavailability as required above will disqualify you from receiving a Service Credit.