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) (“Customer”, “you,” or “your”) and forms part of the Agreement that governs Customer’s use of the Databricks Services. Unless otherwise indicated, capitalized terms have the meaning assigned to them in the Agreement.

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. If you are a Monthly Pay-As-You-Go (PAYG) user of Databricks Services, you acknowledge that Databricks may make changes to the MCSA and pricing from time to time and your continued use of the Databricks Services will constitute consent to such changes and such use shall be subject to the current published version of this MCSA at www.databricks.com/mcsa. If you do not agree to the revised MCSA, you must stop using 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. Additionally, you acknowledge that this Agreement does not govern the use of “Databricks Powered Services“, defined as any third-party software or service powered by Databricks, and listed at https://www.databricks.com/cloud-provider-directory, as those are provided to you under contractual terms between you and such third-party. For purposes of Databricks Powered Services, this Agreement does not amend any term of such third-party 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.

 

1. 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. 
   1. “Acceptable Use Policy” means the acceptable use policy governing the Databricks Services located at databricks.com/legal/aup.
   2. “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
   3. “Agreement” means this MCSA, the Service Specific Terms, the referenced or attached Schedules and addenda, and any accompanying or future Order you enter into under this MCSA.
   4. “Authorized User” means employees or agents of Customer or its Affiliates (or other individuals or customers of the Customer solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Databricks Services.
   5. “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.
   6. "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 used under the Agreement.
   7. “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.
   8. “Course” means an instance of either Instructor-Led Training Services or Self-Paced Training Services.
   9. “Course Materials” means the training materials and other information and content provided by Databricks in conducting the Training Services.
   10. “Customer Content” means all data processed by Databricks on your behalf in the course of providing the Platform Services or Support Services.
   11. “Customer Materials” means the information and/or materials Customer or its Affiliates provides to Databricks for Databricks to perform the Advisory Services.
   12. "Databricks Global Code of Conduct” means the Databricks Global Code of Conduct located at databricks.com/legal/global-code-of-conduct.
   13. “Databricks Materials” means any software programs, tools, know-how, expertise, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, training materials, and any other materials of any kind used, created, developed or delivered by Databricks or its personnel in connection with the Databricks Services.
   14. “Databricks Services” means (a) the Databricks data processing platform services (the “Platform Services”), (b) support services (“Support Services“), (c) training services (“Training Services“), and (d) advisory services (“Advisory Services“) and any other services provided by Databricks.
   15. “Deliverable” means any work product, deliverables, reports, databases, analyses, recommendations, programs, applications, or other documentation or inventions provided, created, or developed by Databricks in the performance of Advisory Services and/or Training Services under an Order. For clarity - no part of the Platform Services will be deemed to be incorporated into the Deliverables.
   16. “Documentation” means the documentation related to the Platform Services located at databricks.com/documentation.
   17. “DPA" unless you have separately executed this document means the Data Processing Addendum located at databricks.com/legal/dpa.
   18. “Effective Date” means the earliest of: the effective date of the initial Order that references this MCSA or the date of last signature of the MCSA, or if you are a monthly Pay-as-you-go user the date you first access or use any Databricks Services.
   19. “Fees” means all amounts payable for Databricks Services.
   20. “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.
   21. “Order” means an order form (“Order Form”), online order (including the provisioning of any Databricks Services), Statement of Work (pursuant to an Order Form), 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.
   22. “Security Addendum” means the Platform Services Security Addendum located at databricks.com/security-addendum.
   23. “Service Specific Terms” means the additional service specific terms applicable to certain Databricks Services, as published at https://www.databricks.com/legal/service-specific-terms (or any successor location). Databricks may update the Service Specific Terms by posting updates at such location, and Customer’s continued use of the applicable Databricks Services will constitute acceptance of such updates. Notwithstanding the foregoing, any updates to Service Specific Terms shall not result in a material diminishment of Customer's rights or Databricks' obligations during the then-current term of an applicable Order Form with respect to features and functionalities generally available as of the effective date of such Order Form, unless and to the extent required by applicable law. Databricks will provide a means by which Customer may subscribe to receive updates to the Service Specific Terms.
   24. “Schedule” means any of the schedules referenced herein (if applicable) or otherwise set forth in an Order.
   25. “Support Policy” means the available Support Services plans, offerings, and related processes and terms located at databricks.com/support.
   26. “System” means any application, computing or storage device, or network.
   27. “Usage Data" means 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.
   28. “Workspace” means a Platform Services environment.
2. Confidentiality.
   1. Confidential Information. “Confidential Information” means any business or technical information disclosed by or on behalf of either party or their Affiliates 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.
   2. 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, Affiliates 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, Affiliate 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 (Confidentiality). 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 (if legally permitted to do so) 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 (Confidentiality) will supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) and such agreement will have no further force or effect with respect to Customer Content.
   3. 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.
3. Intellectual Property.
   1. Ownership by Databricks. Except for the limited licenses expressly set forth in the Agreement, Databricks retains all rights, title and interest in and to (i) the Databricks Services, Documentation, Deliverables, Databricks Materials, Course Materials and any and all related and underlying technology and documentation (including but not limited to products, software tools, algorithms, know-how, processes, methodologies, databases, and architecture) created by or for, or licensed to Databricks; and (ii) any updates, upgrades, improvements, modifications, or derivative works of any of the foregoing ((i) and (ii) collectively the “Databricks Technology”), including all Intellectual Property Rights in any of the foregoing. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Databricks Technology as delivered to you. You agree that the Databricks Technology is provided on a non-exclusive basis and not sold, and that no transfer of ownership of Intellectual Property Rights will occur. You further acknowledge and agree that portions of the Databricks Technology, 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.
   2. Ownership by Customer. As between you and Databricks, you retain all ownership or license rights in Customer Content.
   3. 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 disclose any Usage Data to any third-parties unless (a) it 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 to perform the Databricks Services.
   4. 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.
   5. Advisory and Training Services Licenses.
      1. Advisory Services Deliverables. With respect to Deliverables, Databricks grants you a non-exclusive, perpetual, fully paid-up, royalty-free license to use, copy, modify, or create derivative works based on the Deliverables; however, if Databricks incorporates any Databricks Materials into the Deliverables, such license to Databricks Materials is solely for your internal business purposes when using the Deliverables for their intended purposes with Databricks Services. Unless otherwise set forth in an Order the Deliverables are not subject to any maintenance, support or updates.
      2. Training Services Materials. Databricks grants a limited, non-sublicensable, non-transferable, license to the Course Materials, solely for the internal educational use by individuals who attend a training Course (“Students”). Unless indicated by a Databricks instructor, Students are permitted to retain any Course Materials provided during the Course for continued learning following the conclusion of the Course. For the avoidance of doubt, Course Materials may not be used other than by the Students who received them, and may not be shared with individuals who did not attend the Course.
4. Use of the Platform Services.
   1. Access to Platform Services. 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 solely for Customer’s or their Affiliate’s internal business purposes.
   2. Databricks Responsibilities.
      1. Services. Databricks is responsible for (a) the operation of the Databricks Cloud Environment; and (b) the Databricks software used to operate the Platform Services.
      2. 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. While Databricks may update the Security Measures, it shall not materially diminish the effectiveness of the Security Measures.
   3. Customer Responsibilities. 
      1. General Responsibilities.  You acknowledge and agree that you are responsible for:
         1. ensuring that each Authorized User has their own credentials, protecting those credentials, and not permitting any sharing of credentials;
         2. your Authorized User’s compliance with this Agreement;
         3. securing any Customer Cloud Environment, and any Customer System;
         4. backing up Customer Content; 
         5. 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 data that you share with or receive from third parties;
         6. 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;
         7. 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. 
      2. Platform Services Use Limits. You will not, and will not permit your Authorized Users to:
         1. violate the Acceptable Use Policy or use the Platform Services other than in accordance with the Documentation;
         2. 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;
         3. 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;
         4. 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 Services;
         5. transfer or assign any of your rights hereunder except as permitted under Section 13.5 (Assignment); or
         6. 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.
   4. 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, in such instances, each party must undertake certain technical and organizational measures in order to protect the Platform Services and the Customer Content.
   5. Customer Content.
      1. Limits on What Customer Content May Contain. You agree that you will not include in Customer Content 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.
      2. PHI / Cardholder Data. You shall not include in Customer Content any protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time to time (“HIPAA”) or any cardholder data as defined under PCI-DSS (“Cardholder Data”) unless (a) you have entered into an Order permitting you to process PHI and/or Cardholder Data, as applicable; (b) you configure and operate the Platform Services in accordance with any applicable Documentation; and (c) in the case of PHI, you have entered into a Business Associate Agreement (“BAA”) with Databricks. Databricks will have no liability under the Agreement relating to PHI or Cardholder Data that is not processed in accordance with the terms of this Section notwithstanding anything in the Agreement or, as applicable, in HIPAA or in PCI-DSS or any other laws to the contrary.
   6. 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.  
   7. Data Protection. The terms of the DPA are hereby incorporated by reference and shall apply to the processing of Personal Data as described in the DPA. Databricks does not act as a data processor with respect to any data processed by or within a Databricks Powered Service.
   8. Suspension and Termination of Platform Services.
      1. 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 4.5 (Customer Content), or Section 12 (Compliance with Laws) in a manner that may cause material harm or material risk of harm to Databricks or to any other party; or (ii) 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.
      2. Termination. If the Agreement is terminated for any reason, as to all Orders or as to any specific Order, Databricks may cancel your access to the Platform Services under the terminated Order(s) including all related Workspaces. Upon termination of the Agreement for any reason you will delete all stored elements of the Platform Services from your Systems.
      3. Deletion of Customer Content upon Cancellation of Workspace Access. Databricks will automatically delete all Customer Content contained within a Workspace within thirty (30) days following the cancellation of Customer’s right to access such Workspace.
      4. 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) upon thirty (30) days’ prior written notice (email sufficient), if Databricks reasonably determines the account is inactive. In such case, Databricks may also delete any Customer Content relating to such Workspace that may be stored within the Platform Services or other Databricks’ Systems upon expiration of such notice period.
      5. Notice. Notwithstanding Section 13.6 (Notice), notice under this Section 4.8 (Suspension and Termination of Platform Services) 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.
5. Support Services. Databricks will provide you with the level or type 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 fora.
6. Advisory Services / Training Services.
   1. Generally. Databricks will generally provide the Advisory Services and/or Training Services remotely, unless we agree to provide Databricks Services at a mutually agreed location at your request. If our personnel travel at your request, you agree to reimburse our reasonable, actually-incurred travel and lodging expenses. While on Customer’s premises, Databricks personnel will adhere to customer’s reasonable onsite access policies (provided to Databricks in writing in advance). For the avoidance of doubt, no such policies will be deemed to modify the terms of the Agreement. Pre-purchased Advisory Services and/or Training Services will expire after the period indicated on the Order. Advisory Services are quoted and provided on the basis of 8-hour service days.
   2. Advisory Services.
      1. Your Responsibilities. You
         1. acknowledge that Databricks does not provide data backup services, and you are responsible for maintaining any backup copies of all Customer Materials and;
         2. will limit Databricks’ access to data, and only give us access to data reasonably necessary to permit us to perform the Advisory Services; and
         3. acknowledge that successful delivery of the Advisory Services depends on your full and timely cooperation, and agree to make appropriate personnel and/or information reasonably available and in a timely manner to allow Databricks to perform such Advisory Services.
      2. Restrictions on Use. You will not
         1. copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of any Deliverables provided to you in object code, 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;
         2. use the Databricks 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 Services; or
         3. transfer or assign any of your rights hereunder except as permitted under Section 13.5 (Assignment).
      3. Customer Materials. You represent and warrant that as to Customer Materials
         1. you have necessary rights or permissions for its collection, use and processing as contemplated by the Agreement; or
         2. will not contain, except as otherwise specified in an Order, any (1) bank, credit card or other financial account numbers or login credentials, (2) social security, tax, driver’s license or other government-issued identification numbers, or (3) health information identifiable to a particular individual.
      4. Protection of Customer Materials. To protect the security and confidentiality of Customer Materials under Databricks’ control, Databricks will maintain appropriate administrative, physical, and technical safeguards according to ISO/IEC 27001:2013. Unless otherwise specified in an Order, Advisory Services are provided under the expectation that Customer is not engaging Databricks for the purpose of having Databricks act as a data processor for Customer. Nevertheless, when the Customer Materials include Personal Data, as defined in the DPA, the terms of the DPA are hereby incorporated by reference and will apply to the extent Databricks is deemed to act as Customer’s data processor during the performance of Advisory Services. For clarity - Databricks does not act as a data processor with respect to any data processed by or within a Databricks Powered Service.
   3. Training Services
      1. Generally. Depending on the Courses you Order, Training Services may be delivered (i) in scheduled real-time session(s) by instructors (“Instructor-led Training Services”), either virtually (online) or in person (as a private Course); or (ii) as a self-paced online training course (“Self-Paced Training Services”). For Training Services, we provide qualified training personnel and/or suitable training materials. You will not provide Databricks any Customer Content for use with the Training Services, including in any shared temporary Workspaces we may make available to Students to facilitate demonstration and learning during a Course.
      2. Instructor-led Training Services. If we have agreed to provide you with Instructor-led Training Services in person (e.g. a private Course), then in support of our delivering such Training Services, you will (i) be responsible for providing a reasonable training venue, and all training venue expenses and arrangements, including providing us access to appropriate contacts to assist in logistics coordination, audio-visual and the like; (ii) provide Databricks access to your designated training venue as reasonably required by Databricks to setup and perform the Instructor-led Training Services.
7. Warranties; Remedy.
   1. 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: (1) 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; and (2) Advisory Services will be provided in a professional and workmanlike manner consistent with industry standards. For Advisory Services this warranty will not apply unless Customer provides written notice of a claim within ninety (90) days from performance of the deficient Advisory Services.
   2. Disclaimer. THE WARRANTIES PROVIDED BY DATABRICKS IN SECTION 7.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING DATABRICKS, DATABRICKS SERVICES, AND DELIVERABLES 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 DATABRICKS SERVICES OR DELIVERABLES; AND (c), DATABRICKS IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE DATABRICKS SERVICES OR DELIVERABLES, OR FOR CONCLUSIONS DRAWN FROM SUCH USE. FURTHER, DATABRICKS EXPRESSLY DISCLAIMS ANY OBLIGATION TO SUPPORT, MAINTAIN, OR UPDATE ANY DELIVERABLE AFTER THE TERMINATION OR EXPIRY OF THE ORDER, UNLESS THE PARTIES EXPLICITLY AGREE OTHERWISE IN THE APPLICABLE ORDER.
   3. Warranty Remedy. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE PLATFORM SERVICES OR ADVISORY SERVICES PROVIDED BY DATABRICKS IN SECTION 7.1 (WARRANTIES), YOUR EXCLUSIVE REMEDY AND DATABRICKS’ ENTIRE LIABILITY WILL BE: (1) FOR PLATFORM SERVICES, THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, (2) FOR ADVISORY SERVICES, THE RE-PERFORMANCE OF THE DEFICIENT SERVICES, OR, (3) 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 (A) THE EFFECTIVE DATE OF TERMINATION (FOR PLATFORM SERVICES) OR (B) THE COMMENCEMENT OF THE DEFICIENCY (FOR ADVISORY SERVICES).
8. Indemnification. 
   1. Indemnification by Databricks. Subject to Section 8.5 (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”) to the extent that it alleges 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 third 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 to the extent they are based upon such Claim Against Customer, or for amounts paid by Customer under a settlement approved in writing by Databricks resulting from such 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.
   2. 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.
   3. Indemnification by Customer. Subject to Section 8.5 (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, (b) arising from or related to Customer Content or its use with the Databricks Services, (c) to the extent that it alleges that any Customer Materials, or the use of Customer Materials with the Databricks Services, infringes or misappropriates such third 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 (each (a)-(d) a “Data Claim”), and will indemnify Databricks from and against any damages, attorney fees and costs finally awarded against Databricks to the extent they are based upon, or for amounts paid by Databricks under a settlement approved by Customer in writing of, a Claim Against Databricks.
   4. Sole Remedy. SUBJECT TO SECTION 8.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 8.1 (INDEMNIFICATION BY DATABRICKS) AND 8.2 (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.
   5. Conditions of Indemnification. As a condition to an indemnifying party’s (each, an “Indemnitor”) obligations under this Section 8 (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 relieve Indemnitor of its obligation to indemnify only 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.
9. Limitation of Liability.
   1. “Excluded Claims” means claims arising from (a) personal injury or death caused by the negligence of a party, its employees or agents; (b) fraud or fraudulent misrepresentation; (c) a party’s payment obligations under this Agreement; (d) Databricks’ indemnification obligations for an IP Claim; (e) Customer’s indemnification obligations for a Data Claim; (f) infringement by a party of the other party’s Intellectual Property Rights or (g) any other liability that cannot be excluded or limited by applicable laws.
   2. NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR EXCLUDED CLAIMS.
   3. SUBJECT TO SECTION 9.2:
      1. TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER PARTY WILL HAVE ANY LIABILITY FOR: (i) LOST PROFITS OR REVENUE; (ii) LOSS OF GOODWILL; (iii) LOSS OR CORRUPTION OF DATA; (iv) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE DATABRICKS SERVICES; OR (v) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
      2. SUBJECT TO SUB-SECTION (c) BELOW, 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.
      3. DATABRICKS’ AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF AN UNAUTHORIZED DISCLOSURE OF CUSTOMER CONTENT RESULTING FROM DATABRICKS’ BREACH OF (i) ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 2.2 (CONFIDENTIALITY) OR (ii) WITH RESPECT TO THE PROVISION BY DATABRICKS OF THE PLATFORM SERVICES (IF APPLICABLE), DATABRICKS’ DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT AND THE DPA, 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”).
   4. 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.
   5. NOTWITHSTANDING ANYTHING IN THIS SECTION 9 TO THE CONTRARY AND SO FAR AS PERMITTED BY LAW, DATABRICKS’ 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).
10. Term
    1. 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 10 (“Term”). The Agreement, including your use of the Platform Services and any Workspaces and any applicable Order, 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.
    2. Term of Orders. An Order may specify the effective duration of the Databricks Services purchased under such Order.
    3. Survival. All provisions of the Agreement that by their nature should survive termination will so survive.
11. 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 Orders, except as otherwise specified in such Order(s): (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 Platform Services usage (and related Support Services, if any) will be invoiced monthly in arrears. To the extent that you enter into an order with a reseller or accept an Order via a Cloud Service Provider’s marketplace, your payment terms will be as you separately arrange with such third party, provided that should you fail to pay Fees when due to a Databricks-authorized reseller or through the nominated Cloud Service Provider, 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. All amounts due under this Agreement or any Order shall be paid in full (which shall include, as relevant, payments to Databricks, a Cloud Service Provider, or Databricks-authorized reseller) without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. Compliance with Laws.
    1. 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.
    2. By Customer Generally. You shall use the Databricks Services in compliance with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.
    3. Export Controls; Trade Sanctions. The Databricks Services may be subject to export controls and trade sanctions administered or enforced by 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).
    4. 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 using 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.
13. General.
    1. 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)
       Americas (except Canada); Middle East; Africa	Delaware	Delaware (state and U.S. federal courts)
       Canada	Ontario	Toronto
       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.

    2. 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.
    3. Entire Agreement, Construction, Amendment and Execution. The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter, provided that to the extent Customer uses any Databricks Services subject to terms not included in the Agreement, the relevant terms 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. Customer acknowledges that, in entering this Agreement, it has not relied on any statement, warranty, representation or other promise of any nature not contained in this Agreement. Databricks may change and update the Platform Services, in which case Databricks may update the Documentation. To the extent there is a conflict or inconsistency among provisions of the following documents, the order of precedence shall be as follows: (a) the applicable Order, (b) the Service Specific Terms, and (c) this MCSA. Customer’s Affiliates may receive the Databricks Services under this Agreement as Authorized Users. Alternatively, where 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. Except as set out elsewhere in this Agreement, any variation or waiver of this Agreement must be expressly agreed in writing signed by both parties. Without limiting the foregoing, no Customer purchase order, onboarding forms, terms of business or other documentation 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.
    4. 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 and a general statement that Customer has selected Databricks as its data platform, in public-facing materials. 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 public-facing materials.
    5. 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, upon change of control, is a) to a direct competitor of the other party or b) 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.
    6. 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. Save in respect of any notices pertaining to litigation, breach of the Agreement or material breach, the Customer may also send notices to Databricks legal department at [email protected] and Databricks may also send notices to Customer by using the last primary contact email.
    7. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to 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. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).

 

The parties by their duly authorized representatives have executed this Agreement as of the Effective Date.

Last Updated September 4, 2024. For earlier versions, please send a request to [email protected] (with “TOS Request” in the subject).