Master Cloud Services Agreement
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 Unified Analytics Platform, Databricks’ multi-cloud data processing platform (the “Platform Services”), on each cloud service where Databricks directly provides customers with access to such Platform Services. Please see the Cloud Provider Directory for information relating to these available Cloud Service Providers. Unless otherwise indicated, capitalized terms have the meaning assigned to them in this MCSA or in an incorporated Schedule.
If you are entering into this MCSA on behalf of a company (such as your employer) or other legal entity, you represent and warrant that You are authorized to bind that entity to this MCSA, in which case “Customer,” “you,” or “your” will refer to that entity (otherwise, such terms refer to you as an individual). If you do not have authority to bind Your entity or do not agree with any provision of this MCSA, you must not accept this MCSA and may not use the Databricks Services.
By accepting this MCSA, either by executing this MCSA, an Order Form, or another agreement that explicitly incorporates this MCSA by reference, Customer, on behalf of itself and any Affiliates, enters into the MCSA and the following Schedules, each of which are incorporated into the MCSA and apply to the provision of the applicable Databricks Services upon your ordering such service:
Each Order Form you enter into directly with Databricks or with a Databricks-authorized reseller (a “Reseller Order”) may include specific terms governing the Databricks Services you have ordered, which may include one or more of the following: (a) the Platform Services, (b) contractual volume-based commitment arrangements applicable to any Platform Services or Databricks Powered Services indicated in an Order Form (“Universal Commitment“), (c) support services (“Support Services“), (d) training services (the “Training Services“), or (e) advisory services (the “Advisory Services,” and together with any other services provided by Databricks, (a), (b), (c), (d), and (e) shall be defined as the “Databricks Services”). You acknowledge that any Reseller Order is subject to Databricks’ prior approval and agree that no term in any Reseller Order will be deemed to modify the Agreement unless pre-authorized in writing by Databricks.
- Definitions. Certain terms not defined elsewhere in the Agreement are defined below in this Section. Capitalized terms used but not defined in a Schedule or an Order Form will have the meaning assigned to them, if any, within this MCSA.
- “Affiliate” of a party means an entity that controls, is controlled by, or is under common control with such party.
- “Agreement” means this MCSA, the referenced Schedules, and any accompanying or future Order Form you enter into under this MCSA.
- “Authorized User” means employees or agents of Customer (or Affiliates or other individuals solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Platform Services.
- “Cloud Provider Directory” means information relating to the Cloud Service Providers on which Databricks makes available the Platform Services, located at databricks.com/cloud-provider-directory.
- “Cloud Service Provider” means a cloud service provider on whose platform Databricks directly provides the Platform Services.
- “Databricks Powered Service” means any software or service powered by Databricks Runtime that is provided under contract with a third party, and this Agreement does not amend any term of such contract; the Databricks Powered Services are not considered Databricks Services under this Agreement and Databricks shall have no liability, as between the parties, for such services.
- “Databricks Runtime” means Databricks’ proprietary data processing engine, as further described at docs.databricks.com/runtime.
- “Effective Date” means the earliest to occur of: the effective date of the initial Order Form that references this MCSA, the date you execute the MCSA, or the date you first access or use any Databricks Services.
- “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) Databricks’ indemnification obligations for an IP Claim; or (d) Customer’s indemnification obligations.
- “Fees” means all amounts payable for Databricks Services under an applicable Order Form.
- “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.
- “IP Claim” will have the meaning assigned in Section 5.1 (Indemnification by Databricks).
- “Order Form” means an order form, online order (including click-thru setup of any Databricks Services) or similar agreement, including any exhibits, attachments or Schedules referenced therein or attached thereto, for the provision of Databricks Services, entered into by the parties, incorporated by reference into, and governed by, the Agreement.
- “Schedule” means any of the schedules referenced herein or otherwise set forth on an Order Form.
- Confidentiality; Data Protection.
- 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 considered to be Databricks’ Confidential Information, and the terms of the Agreement, any information that either party derives relating to the conduct or performance of the other party’s personnel, services or systems, and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.
- Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 2.2. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable laws, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 2.2 will supersede any non-disclosure agreement by and between the parties and/or their Affiliates (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Content (as defined in the Platform Services Schedule) and such agreement will have no further force or effect with respect to Customer Content.
- Data Protection. Terms governing data protection are set forth in the applicable Schedule(s).
- 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 an applicable Schedule, 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.
- 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. 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.
- Warranties; Remedy.
- Warranties. Databricks warrants that during the term of the Agreement it will employ appropriate industry standards of practice: (a) to ensure that its provision of the Databricks Services under the Agreement will not infringe any third party Intellectual Property Rights or other proprietary rights; and (b) designed to meet its confidentiality and other obligations under the MCSA.
- Disclaimer. THE WARRANTIES IN SECTION 4.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING DATABRICKS AND DATABRICKS’ SERVICES PROVIDED HEREUNDER. DATABRICKS SPECIFICALLY DISCLAIMS 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, DATABRICKS IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE DATABRICKS SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE.
- Warranty Remedy. FOR ANY BREACH OF THE WARRANTY IN SECTION 4.1(a) YOUR EXCLUSIVE REMEDY AND DATABRICKS ENTIRE LIABILITY WILL BE AS SET FORTH IN SECTIONS 5.1 (INDEMNIFICATION BY DATABRICKS) AND 5.2 (OTHER REMEDIES).
- Indemnification by Databricks. Subject to Section 5.5 (Conditions of Indemnification), Databricks will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a “Claim Against Customer”) alleging that the Databricks Services as provided to Customer by Databricks or Customer’s use of the Databricks Services in accordance with the Documentation and the Agreement infringes or misappropriates such party’s Intellectual Property Rights (an “IP Claim”), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Databricks in writing of, a Claim Against Customer. Notwithstanding the foregoing, Databricks will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (a) the public open source version of Apache Spark (located at github.com/apache/spark), if the claim of infringement or misappropriation does not allege with specificity that the infringement or misappropriation arises from the Platform Services (as opposed to Apache Spark itself); (b) the combination, operation or use of the Databricks Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by Databricks, if a claim would not have occurred but for such combination, operation or use; or (c) your or an Authorized User’s use of the Databricks Services other than in accordance with the Documentation and the Agreement.
- Other Remedies. If Databricks receives information about an infringement or misappropriation claim related to a Databricks Service or otherwise becomes aware of a claim that the provision of any of the Databricks Services is unlawful in a particular territory, then Databricks may at its sole option and expense: (a) replace or modify the applicable Databricks Services to make them non-infringing and of substantially equivalent functionality; (b) procure for you the right to continue using the Databricks Services under the terms of the Agreement; or (c) if Databricks is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and Databricks’ obligations under the Agreement with respect to such Databricks Services and refund to you any Fees prepaid by you to Databricks for Databricks Services not yet provided.
- Indemnification by Customer. Subject to Section 5.5 (Conditions of Indemnification), Customer will defend Databricks and its Affiliates and its and each of their officers, employees, directors, and agents (each, a “Databricks Indemnitee”) against any claim, demand, suit or proceeding made or brought against a Databricks Indemnitee by a third party (a “Claim Against Databricks”) (a) arising from or related to Customer’s use of the Databricks Services in violation of any applicable laws or the Agreement; or (b) arising from any matter specified to be the subject of an indemnity in an applicable Schedule, and will indemnify each Databricks Indemnitee from and against any damages, attorney fees and costs finally awarded against a Databricks Indemnitee as a result of, or for amounts paid by a Databricks Indemnitee under a settlement approved by Customer in writing of, a Claim Against Databricks.
- Sole Remedy for Infringement of Intellectual Property Rights. SUBJECT TO SECTION 5.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 5.1 (INDEMNIFICATION BY DATABRICKS) AND 5.2 (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 5 (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.
- Nothing in the Agreement will limit either party’s liability for:
- the Excluded Claims; or
- any other liability that cannot be excluded or limited by applicable laws.
- SUBJECT TO SECTION 6.1, 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 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 8 (PAYMENT).
- Notwithstanding anything else to the contrary in the Agreement, neither party nor its Affiliates will be liable for any:
- loss of profits or revenue;
- loss from damage to business or goodwill;
- loss of data;
- loss arising from inaccurate or unexpected results arising from the use of the Databricks Services; or
- other indirect, incidental, special, punitive, or consequential loss or damages;
even if a party has been advised of the possibility of such losses or damages arising.
- 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 7 (Term). The Agreement may be terminated (i) by either party on thirty (30) days’ prior written notice if (a) there are no operative Order Forms outstanding or (b) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period; or (ii) by Databricks upon thirty (30) days’ prior written notice following your receipt of a notice that you are delinquent in the payment of undisputed Fees. If the Agreement terminates pursuant to the prior sentence due to Databricks’ material breach, Databricks will refund to you that portion of any prepayments made to Databricks related to Databricks Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
- Term of Order Forms. The Term of an Order Form will be as specified in the Order Form.
- Survival. All provisions of the Agreement that by their nature should survive termination will so survive.
- Payment. Unless your usage of the Databricks Services is being paid for by a third party under contract with Databricks (such third party, the “Responsible Customer”), you will pay all Fees specified in the applicable Order Form. With respect to direct Order Forms, except as otherwise specified therein: (a) all Fees owed to Databricks will be paid in U.S. Dollars; (b) invoiced payments will be due within 30 days of the date of your receipt of each invoice; and (c) Fees for all committed Databricks Services will be invoiced in full upon execution of the applicable Order Form and all excess usage will be invoiced monthly in arrears. With respect to a Reseller Order, payment terms will be specified on such Reseller 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.
- Export. The Databricks Services may be subject to export laws of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party or debarment list. You will not permit your users to access or use any Databricks Services in a U.S. embargoed country (as of the Effective Date, Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export Law.
- 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:
||Venue (courts with exclusive jurisdiction)
||San Francisco (state and U.S. federal courts)
|North America except California; South America; Middle East; Africa
||Delaware (state and U.S. federal courts)
||England & Wales
|Europe except United Kingdom (including all of Russia and Turkey)
|Pacific & Asia (excluding Middle East, Australia and New Zealand)
|Australia and New Zealand
* Any dispute subject to Singapore venue will be referred to and finally resolved by arbitration in accordance with the rules of the Singapore International Arbitration Centre (“SIAC”) then in force, which rules are deemed to be incorporated by reference into the Agreement. The number of arbitrators will be one, unless the SIAC registrar determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The language to be used in the arbitration proceedings will be English. The decision of the arbitrator will be final and binding upon the parties. Nothing in this paragraph will prevent either party, in cases in which interim, injunctive or declaratory relief is required, from commencing proceedings and pursuing claims before a court of competent jurisdiction.
The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts (or the SIAC where applicable) in the venues shown above. In all cases, the application of law will be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods will not apply.
- Insurance Coverage. Databricks will maintain commercially appropriate insurance coverage given the nature of the Databricks Services and Databricks’ obligations under the Agreement. Such insurance will be in an industry standard form with admitted insurance carriers with A.M. ratings of A- IX or better, and will include commercially appropriate cyber liability insurance coverage. Upon request, Databricks will provide Customer with certificates of insurance evidencing such coverage.
- Entire Agreement, Construction, Amendment and Execution. The Agreement (including any referenced Schedule and all Order Forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter; for the avoidance of doubt, this Agreement does not provide for or govern the acquisition or use of any Databricks Powered Service. To the extent any provision in an Order Form clearly conflicts with a provision of this MCSA, a Schedule, or a provision of an earlier Order Form, the provision in the new Order Form will be binding and the conflicting provision in this MCSA or in the earlier Order Form will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order Form (unless expressly intended to permanently amend the Agreement including any Schedule). If any provision of the Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. The headings in the Agreement and the Schedules are solely for convenience and will not be taken into consideration in interpretation of the Agreement. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, to fully review and understand the Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption will be given in favor of the non-drafting party. The Agreement may not be modified or amended except by mutual written agreement of the parties. Without limiting the foregoing, no Customer purchase order will be deemed to modify an Order Form or the Agreement or any Schedule unless expressly pre-authorized in writing by Databricks. The Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A party’s electronic signature or transmission of any document by electronic means will be deemed to bind such party as if signed and transmitted in physical form.
- Assignment. No assignment, novation or transfer of a party’s rights and obligations under the Agreement (“Assignment”) is permitted except with the prior written approval of the other party, which will not be unreasonably withheld; provided, however, that either party may freely make an Assignment to a successor in interest upon a change of control, except that if such Assignment is to a direct competitor of the other party or would cause the other party to become in violation of applicable laws that is not reasonably addressable, such other party may terminate the Agreement upon written notice.
- Notice. Any required notice under the Agreement will be deemed given when received by letter delivered by nationally recognized overnight delivery service or recorded prepaid mail. Unless notified in writing of a change of address, you will send any required notice to Databricks, Inc., 160 Spear Street, Suite 1300, San Francisco, CA 94105, USA, attention: Legal Department, or to the alternative Databricks Affiliate (if any) identified in an applicable Order Form, and Databricks will send any required notice to you directed to the most recent address you have provided to Databricks for such notice.
- Force Majeure. Neither party will be liable or responsible to the other party nor be deemed to have defaulted under or breached the Agreement for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other party), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Event(s)“): (a) acts of God, (b) acts of government, including any changes in law or regulations, (c) acts or omissions of third parties, (d) flood, fire, earthquakes, civil unrest, wars, acts of terror, pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the Impacted Party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the Impacted Party’s reasonable control.
Last Updated December 2, 2020. For earlier versions, please send a request to firstname.lastname@example.org (with “TOS Request” in the subject).