This Master Cloud Services Agreement (the “MCSA”) is entered into as of the Effective Date between Databricks, Inc. (“Databricks” or “we“) and Customer (as defined below) and governs Customer’s use of the Databricks Services, including the right to access and use the Databricks data processing platform services (the “Platform Services“), on each cloud service where Databricks directly provides customers with access to such Platform Services. Please see the Cloud Provider Directory for information relating to these available Cloud Service Providers. For the avoidance of doubt, this Agreement does not govern the use of Databricks Powered Services (as defined below), the use of which is governed by a direct contract between the user and the third party offering the Databricks Powered Service. Unless otherwise indicated, capitalized terms have the meaning assigned to them in this MCSA or in an incorporated Schedule.
If you are entering into this MCSA on behalf of a company (such as your employer) or other legal entity, you represent and warrant that You are authorized to bind that entity to this MCSA, in which case “Customer,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind Your entity or do not agree with any provision of this MCSA, you must not accept this MCSA and may not use the Databricks Services.
By accepting this MCSA, either by executing this MCSA, an Order Form, or another agreement that explicitly incorporates this MCSA by reference, Customer, on behalf of itself and any Affiliates, enters into the MCSA and the following Schedules, each of which are incorporated into the MCSA and apply to the provision of the applicable Databricks Services upon your ordering such service:
Your Order Form (whether entered into directly with Databricks or through a reseller purchasing via a marketplace or similar authorized model) may include specific terms governing the Databricks Services you have ordered, which may include one or more of the following: (a) the Platform Services, (b) contractual volume-based commitment arrangements applicable to any Platform Services or Databricks Powered Service indicated in an Order Form (“Universal Usage Commitment“), (c) support services (“Support Services“), (d) training services (the “Training Services“), or (e) advisory services (the “Advisory Services,” and together with any other services provided by Databricks, (a), (b), (c), (d) and (e) shall be defined as the “Databricks Services“). You acknowledge that any Order Form entered into via a reseller is subject to Databricks’ prior approval and agree that no term in any such Order Form will be deemed to modify the Agreement unless pre-authorized in writing by Databricks.
- Definitions. Certain terms not defined elsewhere in the Agreement are defined below in this Section. Capitalized terms used but not defined in a Schedule or an Order Form will have the meaning assigned to them, if any, within this MCSA.
- “Acceptable Use Policy” means the acceptable use policy governing the Platform Services, made available at databricks.com/legal/aup (or such other location as Databricks may provide, and as may be updated from time to time on notice (which notice may be provided by email or within the Platform Services)).
- “Affiliate” of a party means an entity that controls, is controlled by, or is under common control with such party.
- “Agreement” means this MCSA, the referenced Schedules, and any accompanying or future Order Form you enter into under this MCSA.
- “Authorized User” means employees or agents of Customer or Affiliates (or other individuals solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Platform Services.
- “BAA” means a business associate agreement as defined by HIPAA, governing the parties’ respective obligations with respect to any PHI that may be contained within Customer Content.
- “Beta Service” means any Databricks Service (or feature of a Databricks Service) that is clearly designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that Databricks at its sole discretion offers to Customer, and Customer at its sole discretion elects to use.
- “Cloud Environment” of a party means the cloud or other compute or storage infrastructure controlled by the party and utilized under the Agreement.
- “Cloud Provider Directory” means information relating to the Cloud Service Providers on which Databricks makes available the Platform Services, located at databricks.com/legal/cloud-provider-directory.
- “Cloud Service Provider” means a cloud service provider on whose platform Databricks directly provides the Platform Services. For clarity, the Databricks Powered Services are not directly provided by Databricks and are not considered Platform Services in the Agreement.
- “Compute Plane” means the portion of the applicable Cloud Environment where compute resources of the Platform Services are deployed during use of the Platform Services for the primary processing of Customer Data. In the case of Serverless Compute, the Compute Plane is within the Databricks Cloud Environment (the “Databricks Compute Plane”). In all other cases, the Compute Plane is within the Customer Cloud Environment (the “Customer Compute Plane”), and in such cases the processing activity results in fees being charged directly to Customer by the Cloud Service Provider. For the avoidance of doubt, none of the terms “Compute Plane”, “Customer Compute Plane” or “Databricks Compute Plane” include Customer’s cloud storage. In certain Databricks agreements and Documentation, the Compute Plane may be interchangeably referred to as the “Data Plane”.
- “Customer Content” means all Customer Data, Customer Instructional Input, and Customer Results.
- “Customer Data” means the data, other than Customer Instructional Input, made available by Customer and its Authorized Users for processing within the Platform Services or Support Services.
- “Customer Instructional Input” means information other than Customer Data that Customer inputs into the Platform Services to direct how the Platform Services process Customer Data, including without limitation the code and any libraries (including third party libraries) Customer utilizes within the Platform Services.
- “Customer Results” means any output Customer or its Authorized Users generate from their use of the Platform Services.
- “Databricks Control Plane” means the elements of the Platform Services residing within the Databricks Cloud Environment, other than the Databricks Compute Plane, including without limitation the user interface of the Platform Services.
- “Databricks Global Code of Conduct” means the Databricks Global Code of Conduct available at databricks.com/global-code-of-conduct.
- “Databricks Powered Service” means any software or service powered by Databricks Runtime that is provided to you under contract between you and a third party, and this Agreement does not amend any term of such contract; the Databricks Powered Services are not considered Databricks Services (and, for the avoidance of doubt, are not considered Platform Services) under the Agreement and Databricks shall have no liability to you relating to your use of the Databricks Powered Services.
- “Databricks Runtime” means Databricks’ proprietary data processing engine, as further described at docs.databricks.com/runtime.
- “Documentation” means the documentation related to the Platform Services located at databricks.com/documentation (or such other location as Databricks may provide, and as may be updated from time to time).
- “Effective Date” means the earliest to occur of: the effective date of the initial Order Form that references this MCSA, the date of last signature of the MCSA, or the date you first access or use any Databricks Services.
- “Fees” means all amounts payable for Databricks Services under an applicable Order Form.
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time to time.
- “IP Claim” will have the meaning assigned in Section 6.1 (Indemnification by Databricks).
- “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, and databases.
- “Monthly PAYG Service” means the Platform Services provided on a month-to-month basis with payment based only on Customer’s usage of the Platform Services during the billing month.
- “Order Form” means an order form, online order (including click-thru setup of any Databricks Services) or similar agreement for the provision of Databricks Services, entered into by the parties, incorporated by reference into, and governed by, the Agreement.
- “PCI-DSS” means the Payment Card Industry Data Security Standard.
- “PHI” means health information regulated by HIPAA or by any similar privacy Law governing the use of or access to health information.
- “Platform Services DPA” means the Platform Services Data Processing Addendum located at databricks.com/legal/dpa.
- “Security Addendum” means the Platform Security Addendum located at databricks.com/legal/security-addendum (or such other location as Databricks may provide, and as may be updated from time to time in accordance with the Agreement).
- “Schedule” means any of the schedules referenced herein or otherwise set forth on an Order Form.
- “Serverless Compute” means a Platform Service where the Compute Plane is located in Databricks’ Cloud Environment rather than in Customer’s Cloud Environment.
- “Service Specific Terms” means the additional terms applicable to specific Platform Services located at databricks.com/legal/service-specific-terms or such other location as Databricks may provide, and as may be updated from time to time in accordance with the Agreement by Databricks notifying an administrator user within the Platform Services or disclosing the existence of new or changed Service Specific Terms in the applicable section of the Databricks Release Notes (located in the Documentation); Databricks will provide a means by which Customer may subscribe to receive updates to the Service Specific Terms. Service Specific Terms for new Platform Services will be presented for click-through acceptance by an administrator Authorized User prior to enablement of the new Platform Service.
- “Support Policy” means the available Support Services plans as described at databricks.com/support.
- “System” means any application, computing or storage device, or network.
- “Workspace” means a Platform Services environment; a Customer may have multiple Workspaces.
- Confidential Information. “Confidential Information” means any business or technical information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all non-public elements of the Databricks Services are Databricks’ Confidential Information, Customer Content is Customer’s Confidential Information, and the terms of the Agreement and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party, (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others, (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.
- Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 2.2. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable laws, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 2.2 will supersede any non-disclosure agreement by and between the parties and/or their Affiliates (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Content (including ‘customer data’ regardless of how defined) and such agreement will have no further force or effect with respect to Customer Content.
- Equitable Relief. Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 2.2 (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party will be entitled to seek injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained will be in addition to, and not foreclose, any other remedies that may be available.
- Intellectual Property.
- Ownership of the Databricks Services. Except for the limited licenses expressly set forth in the Agreement, Databricks retains all Intellectual Property Rights and all other proprietary rights related to the Databricks Services. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Databricks Services as delivered to you. You agree that the Databricks Services are provided on a non-exclusive basis and that no transfer of ownership of Intellectual Property Rights will occur. You further acknowledge and agree that portions of the Databricks Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of Databricks and its licensors.
- Ownership of Customer Content. As between you and Databricks, you retain all ownership or license rights in Customer Content.
- Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Databricks Services (“Feedback”). If you choose to offer Feedback to Databricks, you hereby grant Databricks a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Databricks Services or otherwise use any Feedback Databricks receives from you solely to improve Databricks products and services, provided that such Feedback is used in a manner that is not attributable to you. You also irrevocably waive in favor of Databricks any moral rights which you may have in such Feedback pursuant to applicable copyright law. Databricks acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind.
- Use of the Platform Services.
- Access and Support.
- Use Authorization. If your Order Form includes Platform Services or you have created a Platform Services account through online setup, you and your Authorized Users may, subject to the terms of such Order Form and the Agreement, including any applicable Schedule or addendum, access and use the Platform Services on any permitted Cloud Service Provider solely for your internal business purposes; if such rights have not been expressly provided to you, you may not use the Platform Services and this Section 4 (Use of the Platform Services) does not apply.
- Cloud Service Providers. A list of, and applicable information relating to the use of the Platform Services on, available Cloud Service Providers is set forth in the Cloud Provider Directory which is incorporated into the Agreement by reference. Databricks may add additional Cloud Service Providers at any time. Instructions on how you may use the Platform Services on the new Cloud Service Provider without needing to enter into a new Order Form may, as applicable, be provided on the Cloud Provider Directory or within a given Order Form.
- Modifications; No Material Diminishment. Databricks reserves the right to improve or otherwise modify the Platform Services and its System architecture or update the Service Specific Terms or Security Addendum at any time subject to maintaining appropriate industry standards of practice relating to the provision and security of the Platform Services, and provided that any such modification (including any modification to the Service Specific Terms or the Security Addendum) does not materially diminish the core functionality or security of the Platform Services.
- Selecting Authorized Users. You must obtain separate credentials (e.g., user IDs and passwords) via the Platform Services for each Authorized User and may not permit the sharing of Authorized User credentials.
- Your Responsibilities Regarding Authorized Users. You will at all times be responsible for and expressly assume the risks associated with all use of the Platform Services under an Authorized User’s account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (1) taken by Databricks or by a party acting under the direction of Databricks, or (2) an action by a third party that Databricks should reasonably have prevented. This responsibility includes the security of each Authorized User’s credentials, and you will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity, or otherwise permit any other person or entity to access or use the Platform Services, except to the extent permitted in an Order Form.
- Support Services. Databricks will provide you with the level of Support Services specified on an Order Form in accordance with the Support Policy. If Support Services are not specified on an Order Form, your support shall be limited to public Documentation and forums.
- Use Limits. You will not, and will not permit your Authorized Users to:
- violate the Acceptable Use Policy or use the Platform Services other than in accordance with the Documentation;
- copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Platform Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement or by law notwithstanding this prohibition;
- sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Platform Services to any third party except to the extent explicitly authorized in writing by Databricks;
- use the Platform Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any Databricks product or service;
- transfer or assign any of your rights hereunder except as permitted under Section 11.4 (Assignment) of the MCSA; or
- during any free trial period granted by Databricks, including during the use of any Beta Service, use the Databricks Services for any purpose other than to evaluate whether to purchase the Databricks Services.
- Customer Content.
- Limits on What Customer Content May Contain. You agree that you may not include in Customer Data or Customer Instructional Input, or generate any Customer Results that include:
- any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by the Agreement;
- any data that is prohibited by the Acceptable Use Policy;
- any PHI unless (1) you are processing the PHI in a PHI Permitted Workspace and configure and operate such Workspace in accordance with the Documentation; and (2) you have entered into (a) an Order Form that explicitly permits you to process PHI within the Platform Services, and then only with respect to the Workspace(s) identified in such Order Form (the “PHI Permitted Workspaces”); and (b) if you are a Covered Entity or a Business Associate (each as defined under HIPAA), a BAA with Databricks which, upon mutual execution, will be incorporated by reference into and subject to the Agreement. If you have not entered into a BAA with Databricks or if you provide PHI to Databricks other than through the PHI Permitted Workspaces, Databricks will have no liability under the Agreement relating to PHI, notwithstanding anything in the Agreement or in HIPAA or any similar laws to the contrary;
- any cardholder data as defined under PCI-DSS (“Cardholder Data”) unless (1) you are processing the Cardholder Data in a PCI Permitted Workspace and configure and operate such Workspace in accordance with the Documentation; and (2) you have entered into an Order Form that (a) specifies Databricks then-current certification status under PCI-DSS; and (b) explicitly permits you to process Cardholder Data within the Platform Services (including specifying the types and quantities of such data) and, and then only with respect to the Workspace(s) identified in such Order Form (the “PCI Permitted Workspaces”). If you have not entered into such mutually executed Order Form with Databricks, or if you provide Cardholder Data to Databricks other than through the PCI Permitted Workspaces, Databricks will have no liability under the Agreement relating to Cardholder Data, notwithstanding anything in the Agreement or in PCI-DSS or any similar regulations to the contrary.
- Usage Data. You acknowledge and agree that, notwithstanding anything to the contrary in the Agreement, Databricks may collect usage data and telemetry regarding your Authorized Users’ use of the Platform Services and that such usage data may occasionally contain Customer Instructional Input (e.g., it may contain the queries entered by an Authorized User) but will not contain Customer Data or Customer Results (“Usage Data”). Databricks will not share (other than with third parties providing services to Databricks who agree in writing to terms at least as restrictive regarding the processing of Usage Data as those set forth in the Agreement) or publicly make available any Usage Data that identifies Customer, or any of its Authorized Users, other data subjects, or customers, nor use any Usage Data in a manner that derives its value from the unique aspects of your Customer Instructional Input.
- Security; Data Protection.
- Shared Responsibility. Customer acknowledges that the Platform Services are implemented in a manner that divides the Platform Services between the Customer Cloud Environment and the Databricks Cloud Environment, and that accordingly each party must undertake certain technical and organizational measures in order to protect the Platform Services and the Customer Content. Without limiting the foregoing, Customer acknowledges and agrees that (1) in order to utilize the current Platform Services other than Serverless Compute, Customer must have an account with the applicable Cloud Service Provider; (2) Databricks does not host the Customer Cloud Environment into which certain parts of the Platform Services may be deployed or the Systems in which your Customer Data may be stored (e.g., an AWS S3 bucket); (3) while certain Customer Data may in some cases be present within the Databricks Cloud Environment of the Platform Services (e.g., within the Customer Results), Databricks’ current Platform Services are not designed to archive or permanently retain Customer Data (e.g., they are intended to provide an environment to facilitate Customer’s processing of Customer Data by permitting Customer to execute Customer Instructional Input and view Customer Results); and (4) Databricks’ current Platform Services do not provide backup services to enable recovery of Customer Data. Accordingly, and without limiting the foregoing, Databricks is not responsible for any loss, destruction, alteration, or corruption of Customer Content, except to the extent caused by the gross negligence or willful misconduct of Databricks.
- Different Architectures. Databricks provides the Platform Services according to different architectural models depending on the specific feature being used by Customer, as further described in the Documentation. Accordingly, Customer acknowledges and agrees that different portions of the Platform Services are and may in the future be subject to Service Specific Terms that provide for different rights and responsibilities of the parties.
- Databricks Responsibilities. Databricks acknowledges and agrees that, as between the parties and except to the extent caused by the action or intentional or negligent inaction of you or your Authorized Users, including without limitation any customizations or configurations of the Platform Services by you or anything specified to be your responsibility above, Databricks is primarily responsible for the operation (excluding to the extent such operation is directed by the Customer Instructional Input) of the Databricks Cloud Environment (including the user interface of the Platform Services, the Databricks Compute Plane with respect to Serverless Compute, and the portion of the Platform Services within the Databricks Control Plane in which the Customer Instructional Input and Customer Results are held until deleted by you) and, with respect to Platform Services other than Serverless Compute, the Databricks software that operates the computing resources in the Customer Compute Plane. Databricks shall implement reasonable administrative, physical, and technical safeguards to protect the security of the Platform Services and the Customer Content as set forth in the Security Addendum (“Security Measures”); and shall, without limiting the foregoing, maintain throughout the term of the Agreement certification to ISO/IEC 27001:2013 or equivalent/greater standards. Additionally, while it is your responsibility to back up Customer Instructional Input, Databricks will, at your reasonable request, provide commercially reasonable assistance with recovery efforts where reasonably possible.
- Customer Responsibilities. You acknowledge and agree that you are responsible for:
- protecting the security of all your credentials used to access the Platform Services (with Databricks also responsible for taking adequate steps to protect Customer credentials to the extent such credentials are within the control of Databricks);
- securing the Customer Cloud Environment, including without limitation the Customer Compute Plane, and any Customer System (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access);
- backing up Customer Instructional Input (e.g., via Github or other third party System);
- all Customer Instructional Input and any consequences arising from Databricks’ execution of such Customer Instructional Input except to the extent caused by Databricks’ breach of its Security Measures or gross negligence or willful misconduct;
- backing up and securing Customer Data under Customer’s control within the Customer Cloud Environment or other Customer controlled System (e.g., by turning on versioning and encryption within AWS S3);
- configuring the Platform Services in an appropriate way taking into account the sensitivity of the Customer Content that you choose to process using the Platform Services;
- using commercially reasonable efforts to ensure that your Authorized Users review the portions of Documentation relevant to your use of the Platform Services and any security information published by Databricks and referenced therein that is designed to assist you in securing Customer Content;
- complying with your security obligations as set forth in the Agreement, including any applicable Schedule or addendum;
- managing and paying the charges associated with your usage of the Customer Cloud Environment (e.g., compute and storage fees); and
- ensuring that Databricks at all times has updated and accurate contact information for the appropriate person for Databricks to notify regarding data security issues relating to the Databricks Services, with such contact information to be updated in each Order Form and any subsequent changes to be provided by email to [email protected] (with “Contact Detail Change” in the subject) and Customer expressly assumes the risks associated with the responsibilities set forth above in this Section;
- Platform Services DPA. Except with respect to a free trial, the terms of the Platform Services DPA are hereby incorporated by reference and shall apply to the extent Customer Content includes Personal Data, as defined in the Platform Services DPA.
- Suspension and Termination of Platform Services.
- Suspension. Databricks may temporarily suspend any or all Platform Services Workspaces at any time: (i) immediately without notice if Databricks reasonably suspects that you have violated your obligations under Section 4.2 (Use Limits), Section 4.3(a) (Limits on what Customer Content may Contain), Section 4.4(d) (Customer Responsibilities) or Section 10 (Compliance with Laws) in a manner that may cause material harm or material risk of harm to Databricks or to any other party; (ii) upon ten (10) business days’ notice (x) if Databricks reasonably suspects that you have committed any other violation of the terms set forth in the Sections listed above in (i); or (y) you fail to pay undisputed Fees after receiving notice that you are delinquent in payment (or if any third party responsible for making payment on your behalf fails to make such timely payments).
- Termination; Workspace Cancellation. Databricks may terminate your use of the Platform Services and any Platform Services Workspaces and any applicable Order Form or Schedule for material breach of the Agreement or any applicable Schedule, including without limitation your breach of any of the terms set forth in the Sections listed above in Section 4.5(a)(i), that in each case is either not cured within thirty days of notice of the breach or that by its nature is incapable of cure. If the Agreement or any applicable Order Form or Schedule is terminated for any reason or upon your written request, Databricks may cancel your Workspaces. Upon termination of the Agreement for any reason, you will delete all stored elements of the Platform Services from your Systems.
- Deletion of Customer Content upon Workspace Cancellation. Databricks will delete all Customer Content contained within a Workspace within thirty (30) days following the cancellation of such Workspace.
- Monthly PAYG Services. Notwithstanding anything in the Agreement to the contrary, Databricks may suspend or terminate any Monthly PAYG Services Workspace, and delete any Customer Content relating to such Workspace that may be stored within the Platform Services or other Databricks’ Systems, upon thirty (30) day’s prior written notice (email sufficient) if Databricks reasonably determines the account is inactive as set forth in the Acceptable Use Policy.
- Notice. Notwithstanding Section 11.5 (Notice) of the MCSA, notice under this Section 4.5 (Suspension; Termination) may be provided by email sent to a person the party providing notice reasonably believes to have responsibility for the other party’s activities under the Agreement.
- Warranties; Remedy.
- Warranties. Each party warrants that it is validly entering into the Agreement and has the legal authority to do so. In addition to the warranties provided by the parties as set forth in any applicable Schedule, Databricks warrants that, during the term of any Order Form for Platform Services: (a) the Platform Services will function substantially in accordance with the Documentation; and (b) Databricks will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Platform Services.
- Disclaimer. THE WARRANTIES PROVIDED BY DATABRICKS IN SECTION 5.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING DATABRICKS AND DATABRICKS’ SERVICES PROVIDED HEREUNDER. DATABRICKS AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (a) ANY SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND; (b) WITHOUT LIMITATION, DATABRICKS DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE PLATFORM SERVICES; (c), DATABRICKS IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE DATABRICKS SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE; AND (d) EXCEPT AS OTHERWISE STATED IN SECTION 4 (USE OF THE PLATFORM SERVICES), DATABRICKS’ REASONABLE EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER INSTRUCTIONAL INPUT DESCRIBED THEREIN SHALL BE DATABRICKS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE DATABRICKS SERVICES.
- Platform Services Warranty Remedy. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE PLATFORM SERVICES PROVIDED BY DATABRICKS IN SECTION 5.1 (WARRANTIES), YOUR EXCLUSIVE REMEDY AND DATABRICKS’ ENTIRE LIABILITY WILL BE THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, DATABRICKS WILL END THE DEFICIENT SERVICES AND REFUND TO YOU THE PORTION OF ANY PREPAID FEES PAID BY YOU TO DATABRICKS APPLICABLE TO THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
- Indemnification by Databricks. Subject to Section 6.5 (Conditions of Indemnification), Databricks will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a “Claim Against Customer”) alleging that the Databricks Services as provided to Customer by Databricks or Customer’s use of the Databricks Services in accordance with the Documentation and the Agreement infringes or misappropriates such party’s Intellectual Property Rights (an “IP Claim”), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Databricks in writing of, a Claim Against Customer. Notwithstanding the foregoing, Databricks will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (a) the public open source version of Apache Spark (located at github.com/apache/spark), if the claim of infringement or misappropriation does not allege with specificity that the infringement or misappropriation arises from the Platform Services (as opposed to Apache Spark itself); (b) the combination, operation or use of the Databricks Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by Databricks, if a claim would not have occurred but for such combination, operation or use; or (c) your or an Authorized User’s use of the Databricks Services other than in accordance with the Documentation and the Agreement.
- Other Remedies. If Databricks receives information about an infringement or misappropriation claim related to a Databricks Service or otherwise becomes aware of a claim that the provision of any of the Databricks Services is unlawful in a particular territory, then Databricks may at its sole option and expense: (a) replace or modify the applicable Databricks Services to make them non-infringing and of substantially equivalent functionality; (b) procure for you the right to continue using the Databricks Services under the terms of the Agreement; or (c) if Databricks is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and Databricks’ obligations under the Agreement with respect to such Databricks Services and refund to you any Fees prepaid by you to Databricks for Databricks Services not yet provided.
- Indemnification by Customer. Subject to Section 6.5 (Conditions of Indemnification), Customer will defend Databricks and its Affiliates and its and each of their officers, employees, directors, and agents (each, a “Databricks Indemnitee”) against any claim, demand, suit or proceeding made or brought against a Databricks Indemnitee by a third party (a “Claim Against Databricks”) arising from or related to (a) Customer’s use of the Databricks Services in violation of any applicable laws or the Agreement, or (b) Customer Content or its use with the Databricks Services, including without limitation any claim that such Customer Content infringes or misappropriates such party’s Intellectual Property Rights, and will indemnify each Databricks Indemnitee from and against any damages, attorney fees and costs finally awarded against a Databricks Indemnitee as a result of, or for amounts paid by a Databricks Indemnitee under a settlement approved by Customer in writing of, a Claim Against Databricks.
- Sole Remedy. SUBJECT TO SECTION 6.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 6.1 (INDEMNIFICATION BY DATABRICKS) AND 6.2 (OTHER REMEDIES) STATE THE ENTIRE OBLIGATION OF DATABRICKS AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE DATABRICKS SERVICES.
- Conditions of Indemnification. As a condition to an indemnifying party’s (each, an “Indemnitor”) obligations under this Section 6 (Indemnification), a party seeking indemnification (each, an ”Indemnitee”) will: (a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will only relieve Indemnitor of its obligation to indemnify to the extent that it has been prejudiced by the delay); (b) grant the Indemnitor sole control of the defense (including selection of counsel) and settlement of the claim; (c) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; and (d) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
- Limitation of Liability.
- EXCEPT WITH RESPECT TO (I) LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, (II) LIABILITY ARISING OUT OF FRAUD OR FRAUDULENT MISREPRESENTATION, OR (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY WILL HAVE ANY LIABILITY FOR: (A) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES; (B) LOST PROFITS OR REVENUE; (C) LOSS FROM DAMAGE TO BUSINESS OR GOODWILL; (D) LOSS OF DATA; OR (E) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE DATABRICKS SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- SUBJECT TO SECTIONS 7.1, 7.3, 7.4 AND 7.5, EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF: (I) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY, ITS EMPLOYEES, AFFILIATES, OR AGENTS; (II) DATABRICKS’ INDEMNIFICATION OBLIGATIONS FOR AN IP CLAIM; OR (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE DATABRICKS SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE “GENERAL CAP”). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 9 (PAYMENT).
- SUBJECT TO SECTIONS 7.1, 7.4 AND 7.5, DATABRICKS’ AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES, DIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH DATABRICKS’ BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 2.2) OR, WITH RESPECT TO THE PROVISION BY DATABRICKS OF THE PLATFORM SERVICES (IF APPLICABLE), THE DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN SECTION 4.4(c) (DATABRICKS RESPONSIBILITIES) OR THE PLATFORM SERVICES DPA, WHERE SUCH BREACH RESULTS IN UNAUTHORIZED DISCLOSURE OF CUSTOMER CONTENT, EXCEPT TO THE EXTENT SUCH CLAIMS OR DAMAGES ARE CAUSED BY DATABRICKS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL BE LIMITED TO TWO (2) TIMES THE GENERAL CAP (“DATA PROTECTION CLAIMS CAP”).
- IN NO EVENT SHALL DATABRICKS BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE DATA PROTECTION CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA PROTECTION CLAIMS CAP.
- NOTWITHSTANDING ANYTHING CONTAINED ABOVE, ANY LIABILITY RELATING TO BETA SERVICES OR ANY DATABRICKS SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY DATABRICKS SERVICES PROVIDED DURING A FREE TRIAL PERIOD, WILL BE LIMITED TO FIVE THOUSAND US DOLLARS (USD $5,000).
- Term of Agreement. The Agreement will become effective on the Effective Date and will continue in full force and effect until terminated by either party pursuant to this Section 8 (Term). The Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice if (a) there are no operative Order Forms outstanding or (b) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period; or (ii) by Databricks upon thirty (30) days’ prior written notice following your receipt of a notice that you are delinquent in the payment of undisputed Fees. If the Agreement terminates pursuant to the prior sentence due to Databricks’ material breach, Databricks will refund to you that portion of any prepayments made to Databricks related to Databricks Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking of the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
- Term of Order Forms. The Term of an Order Form will be as specified in the Order Form.
- Survival. All provisions of the Agreement that by their nature should survive termination will so survive.
- Payment. Unless your usage of the Databricks Services is being paid for by a third party under contract with Databricks, you will pay all Fees specified in the applicable Order Form. With respect to direct Order Forms, except as otherwise specified therein: (a) all Fees owed to Databricks will be paid in U.S. Dollars; (b) invoiced payments will be due within 30 days of the date of your receipt of each invoice; (c) Fees for all prepaid committed Databricks Services will be invoiced in full upon execution of the applicable Order Form; and (d) all excess usage will be invoiced monthly in arrears. With respect to an Order Form entered into with a reseller, payment terms will be specified on such Order Form, provided that should you fail to pay Fees when due to a Databricks-authorized reseller, Databricks may seek payment directly from you. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month. You will be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes.
- Compliance with Laws.
- By Databricks Generally. Databricks will provide the Databricks Services in accordance with its obligations under laws and government regulations applicable to Databricks’ provision of the Databricks Services to its customers generally, including, without limitation those related to data protection and data privacy, irrespective of Customer’s particular use of the services.
- By Customer Generally. You represent and warrant to Databricks that your use of Databricks Services will comply with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.
- Export Controls; Trade Sanctions. The Databricks Services may be subject to export controls and trade sanctions laws of the United States and other jurisdictions. Customer acknowledges and agrees that it will comply with all applicable export controls and trade sanctions laws, regulations and/or any other relevant restrictions in Customer’s use of the Databricks Services, including that you will not permit access to or use of any Databricks Services in any country where such access or use is subject to a trade embargo or prohibition, and that you will not use Databricks Services in support of any controlled technology, industry, or goods or services without having a valid governmental license, authority, or permission to engage in such conduct. Each party further represents that it is not named on any governmental or quasi-governmental denied party or debarment list that would restrict access to, or use or delivery of, the Databricks Services, including without limitation lists maintained by the U.S. Department of Commerce, U.S. Department of State, U.S. Department of Treasury, or other agency.
- Business Practices; Code of Conduct. Databricks maintains a set of business practice principles and policies in the Databricks Global Code of Conduct, which employees are required to follow. Databricks will abide by these principles and policies in the conduct of all business for Customer and expects your use of any Databricks Services to be conducted utilizing principles of business ethics and social responsibility and, with respect to any Platform Services, in accordance with Databricks’ Acceptable Use Policy and the applicable Platform Services terms set forth in the Agreement.
- Governing Law and Venue. The governing law and exclusive venue applicable to any lawsuit or other dispute arising in connection with the Agreement will be determined by the location of Customer’s principal place of business (“Domicile”), as follows:
|Customer’s Domicile||Governing Law||Venue (courts with exclusive jurisdiction)|
|California||California||San Francisco (state and U.S. federal courts)|
|Americas except California and Canada; Middle East; Africa||Delaware||Delaware (state and U.S. federal courts)|
|영국||England & Wales||London|
|Europe except United Kingdom (including all of Russia and Turkey)||아일랜드||Dublin|
|Pacific & Asia (excluding Middle East, Australia and New Zealand)||싱가포르||싱가포르|
|Australia and New Zealand||오스트레일리아||Victoria|
The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts in the venues shown above. In all cases, the application of law will be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods will not apply.
- Insurance Coverage. Databricks will maintain commercially appropriate insurance coverage given the nature of the Databricks Services and Databricks’ obligations under the Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. Best ratings of A-IX or better, and will include commercially appropriate cyber liability insurance coverage. Upon request, Databricks will provide Customer with certificates of insurance evidencing such coverage.
- Entire Agreement, Construction, Amendment and Execution. The Agreement (including any referenced Schedule and all Order Forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter, provided that to the extent Customer uses any Databricks Services subject to Schedules not included in the Agreement, the relevant Schedule in effect at the time of first use at www.databricks.com/legal/mcsa shall be deemed to govern use of such Databricks Services unless the parties agree otherwise in writing and any reference to a term in such Schedule shall be interpreted accordingly; for the avoidance of doubt, the Agreement does not provide for or govern the acquisition or use of any Databricks Powered Service. To the extent any provision in an Order Form clearly conflicts with a provision of this MCSA, a Schedule, or a provision of an earlier Order Form, the provision in the new Order Form will be binding and the conflicting provision in this MCSA or in the earlier Order Form will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order Form (unless expressly intended to permanently amend the Agreement including any Schedule). If any provision of the Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. The headings in the Agreement and the Schedules are solely for convenience and will not be taken into consideration in interpretation of the Agreement. Any translation of the Agreement or an Order Form that is provided as a courtesy shall not be legally binding and the English language version will always prevail. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, to fully review and understand the Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption will be given in favor of the non-drafting party. The Agreement may not be modified or amended except by mutual written agreement of the parties. Without limiting the foregoing, no Customer purchase order will be deemed to modify an Order Form or the Agreement or any Schedule unless expressly pre-authorized in writing by Databricks. The Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A party’s electronic signature or transmission of any document by electronic means will be deemed to bind such party as if signed and transmitted in physical form.
- Assignment. No assignment, novation or transfer of a party’s rights and obligations under the Agreement (“Assignment”) is permitted except with the prior written approval of the other party, which will not be unreasonably withheld; provided, however, that either party may freely make an Assignment to a successor in interest upon a change of control, except that if such Assignment is to a direct competitor of the other party or would cause the other party to become in violation of applicable laws that is not reasonably addressable, such other party may terminate the Agreement upon written notice.
- Notice. Any required notice under the Agreement will be deemed given when received by letter delivered by nationally recognized overnight delivery service or recorded prepaid mail. Unless notified in writing of a change of address, you will send any required notice to Databricks, Inc., 160 Spear Street, Suite 1300, San Francisco, CA 94105, USA, attention: Legal Department, or to the alternative Databricks Affiliate (if any) identified in an applicable Order Form, and Databricks will send any required notice to you directed to the most recent address you have provided to Databricks for such notice.
- Force Majeure. Neither party will be liable or responsible to the other party nor be deemed to have defaulted under or breached the Agreement for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other party), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Event(s)“): (a) acts of God, (b) acts of government, including any changes in law or regulations, (c) acts or omissions of third parties, (d) flood, fire, earthquakes, civil unrest, wars, acts of terror, pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the Impacted Party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the Impacted Party’s reasonable control.
Last Updated March 28, 2022. For earlier versions, please send a request to [email protected] (with “TOS Request” in the subject).