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. For the avoidance of doubt, this Agreement does not govern the use of Databricks Powered Services. 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, or another agreement that explicitly incorporates this MCSA by reference, Customer 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 may include one or more of the following: (a) the Platform Services, (b) support services (“Support Services“), (c) training services (“Training Services“), or (d) advisory services (“Advisory Services,” and together with any other services provided by Databricks, (a), (b), (c), and (d) shall be defined as the “Databricks Services”). You acknowledge that no term in any Order entered into via a reseller will be deemed to modify the Agreement unless pre-authorized in writing by Databricks.
- Definitions. Defined terms are set out below. Capitalized terms used but not defined in a Schedule or an Order will have the meaning assigned to them, if any, within this MCSA.
- “Acceptable Use Policy” means the acceptable use policy governing the Platform Services located at databricks.com/legal/aup.
- “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
- “Agreement” means this MCSA, the referenced Schedules, and any accompanying or future Order you enter into under this MCSA.
- “Authorized User” means employees or agents of Customer or its Affiliates selected by Customer to access and use the Platform Services.
- “Beta Service” means any feature of the Databricks Services ( 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” means a cloud or other compute or storage infrastructure controlled by a party or by an external user (as may be defined where appropriate by schedule or amendment hereto) according to context and utilized under the Agreement.
- “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 under this Agreement.
- “Customer Content” means all data input into or made available by Customer for processing within the Platform Services or Support Services or generated from the Platform or Support Services.
- “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 Global Code of Conduct” means the Databricks Global Code of Conduct located at databricks.com/global-code-of-conduct.
- “Databricks Powered Service” means any third-party software or service powered by Databricks, including those at https://www.databricks.com/legal/cloud-provider-directory, that is provided to you under contractual terms between you and a third-party. 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.
- “Documentation” means the documentation related to the Platform Services located at databricks.com/documentation.
- “DPA” means the Data Processing Addendum located at databricks.com/legal/dpa.
- “Effective Date” means the earliest of: the effective date of the initial Order 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.
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time to time.
- “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.
- “Order” means an order form (“Order Form”), online order (including the provisioning of any Databricks Services) or similar agreement for the provision of Databricks Services, entered into by the parties or any of their Affiliates, incorporated by reference into, and governed by, the Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- “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.
- “Security Addendum” means the Platform Security Addendum located at databricks.com/legal/security-addendum.
- “Schedule” means any of the schedules referenced herein or otherwise set forth in an Order.
- “Shared Data” means (i) Customer Content that you electto share with third parties or (ii) data you elect to receive from third parties, under an applicable configuration of the Platform Services.
- “Support Policy” means the available Support Services plans located at databricks.com/support.
- “System” means any application, computing or storage device, or network.
- “Usage Data” means usage data and telemetry collected by Databricks relating to Customer's use of the Platform Services. Usage Data may contain queries entered by an Authorized User but not the results of those queries.
- “Workspace” means a Platform Services environment.
- 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 (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Content 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.
- Usage Data. Notwithstanding anything to the contrary in the Agreement, Databricks may collect and use Usage Data to develop, improve, operate, and support its products and services. Databricks will not share any Usage Data that includes Customer Confidential Information except either (a) to the extent that such Usage Data is anonymized and aggregated such that it does not identify Customer or Customer Confidential Information; or (b) in accordance with Section 2 (Confidentiality) of this Agreement.
- 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. Databricks will make the Platform Services available to Customer and its Authorized Users in accordance with the terms and conditions of this Agreement, the Documentation, and an applicable Order.
- Databricks Responsibilities.
- Services. Databricks is responsible for (a) the operation of the Databricks Cloud Environment; and (b) the Databricks software used to operate the computing resources.
- Security Measures. 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 certification to ISO/IEC 27001:2013 or equivalent/greater standards during the term of this Agreement. Additionally, while it is your responsibility to back up Customer Content, Databricks will, at your reasonable request, provide commercially reasonable assistance with recovery efforts. While Databricks may update the Security Measures, it shall not materially diminish the effectiveness of the Security Measures.
- Customer Responsibilities.
- General Responsibilities. You acknowledge and agree that you are responsible for:
- ensuring that each Authorized User has their own credentials, protecting those credentials, and not permitting any sharing of credentials;
- securing any Customer Cloud Environment, and any Customer System;
- backing up Customer Content;
- 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, including Shared Data;
- 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;
- risks associated with all use of the Platform Services by an Authorized User 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.
- 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); 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.
- Shared Responsibilities. Customer acknowledges that the Platform Services may be 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.
- Permitted Benchmarking. You may perform benchmarks or comparative tests or evaluations (each, a “Benchmark”) of the Platform Services and may disclose the results of the Benchmark other than for Beta Services. If you perform or disclose, or direct or permit any third party to perform or disclose, any Benchmark of any of the Platform Services, you (i) will include in any disclosure, and will disclose to us, all information necessary to replicate such Benchmark, and (ii) agree that we may perform and disclose the results of Benchmarks of your products or services, irrespective of any restrictions on Benchmarks in the terms governing your products or services.
- Customer Content.
- Limits on What Customer Content May Contain. You agree that you will not include in Customer Content, 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.
- PHI Data. You shall not include in Customer Content any PHI unless (a) you have entered into an Order permitting you to process PHI, and then only with respect to the Workspace(s) or account (if applicable) (together the “PHI Permitted Workspaces”) identified on such Order; and (b) you have entered into a Business Associate Agreement (“BAA”) with Databricks. 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.
- Cardholder Data. You shall not include in Customer Content 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 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 then only with respect to the Workspace(s) identified in such Order (the “PCI Permitted Workspaces”). Databricks will have no liability under the Agreement relating to Cardholder Data that is not processed in accordance with the terms of this section notwithstanding anything in the Agreement or in PCI-DSS or any similar regulations to the contrary.
- Architectures and Services Updates. Databricks provides the Platform Services according to different architectural models (e.g. models where computing resources are deployed into Customer Cloud Environment and models where computing resources are deployed into Databricks Cloud Environments) 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 changes reflected in the Documentation or terms and conditions that provide for different rights and responsibilities of the parties for their use.
- Databricks Container Services
- As part of Databricks Container Services, Databricks may provide a sample stub container file (a “Sample Container”) that you may use to create a custom container file (a “Modified Sample Container”). Databricks grants you a limited, non-exclusive right and license to use and modify the Sample Container to create a Modified Sample Container to use with Databricks Container Services. The Sample Container may contain libraries that are subject to open source licenses. It is your obligation to review and comply with any such licenses prior to your creation of the Modified Sample Container.
- You may not:
- include in a Custom Container any code: (i) for which you do not have the necessary right or license; or (ii) that contains any code that could subject Databricks to any condition that Databricks make any of its source code available or which may impose any other obligation or restriction with respect to Databricks’ Intellectual Property Rights; or
- attempt to disable or interfere with any technical limitations contained within Databricks Container Services.
- You grant Databricks a worldwide, non-exclusive royalty free right and license to use, reproduce and make derivative works of the Custom Container solely as necessary to provide Databricks Container Services to Customer.
- Data Protection. Except with respect to a free trial, the terms of the DPA are hereby incorporated by reference and shall apply to the processing of personal data as described in the DPA.
- Suspension and Termination of Platform Services.
- Suspension. Databricks may temporarily suspend any or all Workspaces at any time: (i) immediately without notice if Databricks reasonably suspects that you have violated your obligations under Section 4.3 (Customer Responsibilities), Section 4.6 (Customer Content), or Section 11 (Compliance with Laws) in a manner that may cause material harm or material risk of harm to Databricks or to any other party; (ii) or if you (or any third party responsible for making payment on your behalf) fail to pay undisputed Fees after receiving notice that you are delinquent in payment.
- Termination; Workspace Cancellation. Databricks may terminate your use of the Platform Services and any Workspaces and any applicable Order for material breach, including without limitation your breach of Section 4.10(a), that in each case is either not cured within thirty (30) days of notice of such breach or that by its nature is incapable of cure. If the Agreement or any applicable Order 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 automatically delete all Customer Content contained within a Workspace within thirty (30) days following the cancellation of such Workspace.
- Monthly Pay-As-You-Go (PAYG) Services. Notwithstanding anything in the Agreement to the contrary, Databricks may suspend or terminate any 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 and delete any Customer Content relating to such Workspace that may be stored within the Platform Services or other Databricks’ Systems, upon thirty (30) days’ prior written notice (email sufficient) if Databricks reasonably determines the account is inactive as set forth in the Acceptable Use Policy.
- Notice. Notwithstanding Section 12.5 (Notice), notice under this Section 4.10 (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.
- Support Services. Databricks will provide you with the level of Support Services specified in an Order in accordance with the Support Policy. If Support Services are not specified in an Order, your support shall be limited to public Documentation and forums.
- 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 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 6.1 (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 6.1 (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 7.5 (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 specifically 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 7.5 (Conditions of Indemnification), Customer will defend Databricks against any claim, demand, suit or proceeding made or brought against Databricks by a third party (a “Claim Against Databricks”) (a) arising from or related to Customer’s use of the Databricks Services in violation of any applicable laws, the rights of a third party, or the Agreement, or (b) arising from or related to Customer Content or its use with the Databricks Services, (c) alleging that any information and / or materials you provide to Databricks for Databricks to perform Advisory Services as defined in an Advisory Services Schedule (if applicable) (“Customer Materials”) or the use of Customer Materials with the Databricks Services infringes or misappropriates such party’s Intellectual Property Rights, and / or (d) arising from any instructions provided by Customer to Databricks in the creation by Databricks of the Deliverables (as defined in the Advisory Services Schedule (if applicable)), and will indemnify Databricks from and against any damages, attorney fees and costs finally awarded against Databricks as a result of a Claim Against Databricks, or for amounts paid by Databricks under a settlement approved by Customer in writing.
- Sole Remedy. SUBJECT TO SECTION 7.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 7.1 (INDEMNIFICATION BY DATABRICKS) AND 7.2 (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 7 (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 OF 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 8.1, 8.3, 8.4 AND 8.5, EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF: (I) PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF A PARTY, ITS EMPLOYEES, 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 10 (PAYMENT).
- SUBJECT TO SECTIONS 8.1, 8.4 AND 8.5, 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 THIS AGREEMENT AND THE 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 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 (“SUPERCAP”).
- IN NO EVENT SHALL DATABRICKS BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPERCAP. 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 SUPERCAP.
- 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 9 (Term). The Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice if (a) there are no operative Orders 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 Orders. The Term of an Order will be as specified in the Order.
- 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. With respect to direct Order, 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; and (d) all excess usage will be invoiced monthly in arrears. With respect to an Order entered into with a reseller, payment terms will be specified on such Order, 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, or any other restricted use, without having a valid governmental license, authority, or permission to engage in such conduct. Each party further represents that it (and with respect to Customer, each Authorized User and / or Affiliate accessing the Databricks Services) is not named on any governmental or quasi-governmental denied party or debarment list relevant to this Agreement, and is not owned directly or indirectly by persons whose aggregated interest in such party is 50% or more and who are named on any such list(s).
- 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)|
|United Kingdom||England & Wales||London|
|Europe (including Turkey)||Ireland||Dublin|
|Pacific & Asia||Singapore||Singapore|
|Australia and New Zealand||Australia||Victoria|
The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts in the venues shown above. Unless prohibited by governing law or venue, each party irrevocably agrees to waive jury trial. 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 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 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. Databricks may change and update the Platform Services, in which case Databricks may update the Documentation. To the extent any provision in an Order clearly conflicts with a provision of this MCSA or a provision of an earlier Order, the provision in the new Order will be binding and the conflicting provision in this MCSA or in the earlier Order will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order (unless expressly intended to permanently amend the Agreement including any Schedule). Customer’s Affiliates may receive the Databricks Services under this Agreement as Authorized Users, however in the event that a Customer Affiliate wishes to execute its own Order subject to the terms of this Agreement then Customer agrees to remain jointly and severally liable for such use. 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 are solely for convenience and will not be taken into consideration in interpretation of the Agreement. Any translation of the Agreement or an Order 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, fully to 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 or the Agreement 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.
- Publicity. Customer consents to Databricks’ use of Customer's name and logo for public identification as a customer, along with general descriptions of any non-confidential matters Databricks has handled for Customer in promotional marketing materials and press releases. In addition, upon request, Customer consents to participating in a case study regarding its experiences with the Databricks Services ("Case Study"), and inclusion of the Case Study in promotional marketing materials and press releases.
- 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. Notwithstanding the foregoing, either party may freely make an Assignment to a successor in interest upon a change of control; 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, 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.