This Capella Cloud Service Subscription Agreement, the addenda incorporated by reference herein, and, if applicable, the Free Trial Terms and Conditions govern the access and use of the Couchbase, Inc.’s (“Couchbase” or “we”) Capella Cloud Service.
BY CREATING AN ACCOUNT TO USE THE CLOUD SERVICE OR BY USING THE CLOUD SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU REPRESENT AN ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT CREATE AN ACCOUNT AND DO NOT USE THE CLOUD SERVICE.
This Agreement was last updated on October 14, 2021.
1. Definitions.
Capitalized terms used herein shall have the following definitions:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Customer or Couchbase, respectively. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interest in the subject entity.
“Cloud Service” means Couchbase’s database-as-a-service offerings which may be deployed in a Cloud Environment obtained by Couchbase or Customer.
“Clusters” mean any database deployments in the Cloud Service.
“Cloud Control Plane” means the software of the Cloud Service that manages the Data Plane, including the user interface of the Cloud Service.
“Cloud Environment” means the infrastructure-as-a-service cloud environment provided by a third-party cloud services provider into which the Data Plane is deployed.
“Couchbase Privacy Policy” means the Couchbase Privacy Policy available at https://www.couchbase.com/privacy-policy, as updated from time to time.
“Customer” shall mean the entity that the user represents or, if that does not apply, the user individually.
“Customer Content” means all content or data provided by or on behalf of Customer or Authorized Users in the Cloud Service.
“Data Plane” means the components of the Cloud Service that are deployed into the Cloud Environment.
“DPA” means Couchbase’s Data Processing Addendum available at https://www.couchbase.com/CapellaDPA10192021, as updated or amended from time to time.
“Documentation” means any technical documentation provided by Couchbase related to the Cloud Service.
“Fees” means the sums or fees (i) specified on the applicable Order or SOW for Cloud Service and/or Professional Services, (ii) accrued through Customer’s metered usage of the Cloud Service, or (iii) any other fees or charges payable to Couchbase under this Agreement.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, network, or any application or function of any of the foregoing, including the Cloud Service.
“Order” means a transaction document (such as a signed sales quote) identifying Customer’s subscription for the Cloud Service and/or Professional Services, if applicable, along with the applicable Fees and subscription term(s), if any.
“SOW” means a statement of work identifying and describing the Professional Services purchased by Customer and entered into between Couchbase and Customer.
“Subscription Term” means the subscription period set forth in an Order up to and inclusive of any expiration date or, if no period is specified, then the twelve (12) month period starting from the Order effective date.
The term “including” means including but not limited to.
2. Scope. The terms of this Capella Cloud Service Subscription Agreement, the addenda incorporated by reference herein, any accompanying or future Order or SOW issued hereunder (if any), the DPA, if applicable, and the Free Trial Terms and Conditions, if applicable (collectively, referred to herein as, the “Agreement“) govern Customer’s access to and use of the Cloud Service provided by Couchbase. In the event of any conflict between the terms herein, an Order or SOW, and/or the DPA, if applicable, the following order of precedence will apply (in descending order): (1) the DPA with respect to the processing of personal data, (2) the Order or SOW, and (3) the terms herein, only with respect to such conflict.
3. Access and Use of the Cloud Service.
3.1. Subject to Customer’s compliance with the terms and conditions of the Agreement, Couchbase hereby grants to Customer, and Customer’s internal end users to whom Customer grants access to the Cloud Service (including Customer’s employees and authorized subcontractors using the Cloud Service on behalf of Customer) (collectively, the “Authorized Users”) a limited, non-exclusive, revocable, non-transferable, non-sublicensable and non-assignable, right to access and use the Cloud Service and the Documentation within the service plan purchased solely for Customer’s and its Affiliate(s’) (if such Affiliate(s) are authorized in an Order), own internal use.
3.2. Use of the Cloud Service requires Customer and/or its Authorized Users to each create a user account, which may require Customer and Authorized Users to provide a username, password and other login credentials (“Registration Information”). Customer is responsible for confirming any such Registration Information is complete and accurate and kept up-to-date. By providing Registration Information, Customer and any Authorized Users hereby consent to receive email communications from Couchbase. Customer is and shall remain responsible and liable for all activities that occur under Customer’s and Authorized Users’ Registration Information or as a result of Customer’s or Authorized Users’ access to the Cloud Service. Customer shall notify Couchbase immediately of any unauthorized use. Without limiting Customer’s obligations under the Agreement, Couchbase reserves the right to reset or terminate any Registration Information or account credentials if Couchbase suspects any unauthorized access or use. Customer shall ensure that its Authorized Users comply with all terms and conditions of the Agreement and Customer is responsible and liable to Couchbase for any breach of the Agreement by any Authorized User.
3.3. Customer shall allow Couchbase to upgrade to the most current generally available releases of the Cloud Service applicable to Customer’s deployments. Customer acknowledges that Couchbase, in its sole discretion, may make improvements, changes and updates to the Cloud Service and the Documentation at any time.
4. Customer Restrictions. Except as otherwise expressly permitted in the Agreement, Customer shall not, shall not attempt to, or permit any third party (including any Authorized User) to: (a) access or use the Cloud Service and/or Documentation in any manner except as expressly permitted in the Agreement; (b) transfer, sell, rent, lease, lend, distribute, resell, sublicense, market, assign, publish, download, disclose or otherwise make available any part of the Cloud Service and/or Documentation to any third party; (c) circumvent, interfere with or endanger the operation or security of the Cloud Service and/or Documentation, including any measures designed to monitor or prevent use of the Cloud Service in contravention of the Agreement, or otherwise input, upload, transmit or otherwise provide to or through the Cloud Service any information or materials that are unlawful or injurious, or that contain, transmit or otherwise activate any Harmful Code or otherwise are intended to abuse the Cloud Service; (d) conduct penetration or performance tests of the Cloud Service; (e) access or use the Cloud Service to provide services to third parties (such as for time-sharing services, service bureau services or as part of an application services provider or as a service offering primarily designed to offer the functionality of the Cloud Service); (f) access or use the Cloud Service and/or Documentation for the purposes of benchmarking or competitive analysis of the Cloud Service, or developing, using, providing, or supporting products or services competitive to Couchbase; (g) alter, modify, adapt, translate, enhance, reverse engineer, disassemble, decompile or prepare any derivative work from or of the Cloud Service or Documentation, or otherwise derive or determine or attempt to derive or determine the source code or other proprietary information or trade secrets from the Cloud Service or Documentation except where prohibited; (h) remove, delete, efface, obscure or otherwise alter any Couchbase proprietary notices, trademarks, warranties or disclaimers in or relating to the Cloud Service or Documentation; (i) access or use the Cloud Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person or entity, or that violates any applicable law, including the disclosure or transmission of content or data contained in the Cloud Service or Documentation in such a manner or for such a purpose; or (j) revoke or otherwise limit Couchbase’s access to the Cloud Environment (including any Cluster(s)) or do anything else to limit Couchbase’s ability to monitor Customer’s Cluster(s) or otherwise provide the Cloud Service.
5. Shared and Customer Obligations.
5.1. General. The parties acknowledge that each party must undertake certain technical and organizational measures in order to protect the Cloud Service and the Customer Content. Customer acknowledges and agrees that Customer (and its Authorized Users) has sole control and responsibility to choose the appropriate deployment of the Data Plane in Customer’s Cloud Environment or a Couchbase controlled Cloud Environment by making the relevant selection in the Control Plane in creating a Cluster. As to Clusters deployed in Customer’s Cloud Environment, the parties acknowledge and agree that Couchbase does not host Customer’s Cloud Environment into which the Data Plane is deployed or the systems in which Customer Content may be stored. Couchbase is not responsible for any loss, destruction, alteration, or corruption of Customer Content, except to the extent caused by the gross negligence or willful misconduct of Couchbase.
5.2. Customer Responsibilities. Customer acknowledges and agrees that in order to utilize the Cloud Service, Customer is responsible for:
(a) Generally, (i) selecting the appropriate Cloud Environment; (ii) protecting the confidentiality and security of all Registration Information used to access the Cloud Service by Customer or any Authorized User; (iii) implementing and maintaining appropriate technical and security measures to protect Customer Content against unauthorized or unlawful processing, and against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access; (iv) not interfering with, and, if necessary, taking steps to enable, updates to the Cloud Service to ensure Customer is using the latest generally available version of the Cloud Service; (v) implementing and maintaining the appropriate configurations of the Cloud Service to enable the backup services and disaster recovery features of the Cloud Service required for purposes of recovering Customer Content; (vi) properly securing and maintaining any Customer system connected to the Cloud Service (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access); and (vii) notifying Couchbase immediately if Customer believes there has been unauthorized access to or activity with respect to the Cloud Environment or Cloud Service.
(b) Where the Cloud Service is implemented in a manner that divides the Cloud Service between the Data Plane deployed in Customer’s Cloud Environment and the Cloud Control Plane: (i) procuring its Cloud Environment through a third-party cloud services provider, including the provisioning, maintenance, or hosting of such Cloud Environment at Customer’s sole cost and expense, and (ii) properly maintaining and securing Customer’s Cloud Environment connected to the Cloud Service (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access).
5.3. Security. Couchbase will implement and maintain technical organizational security measures. The current technical and organizational security measures are described at Annex B of the DPA.
6. Customer Content.
6.1. Customer hereby grants to Couchbase a limited, non-exclusive, royalty-free, worldwide right and license to use, display, host, copy, process, archive, and transmit any and all Customer Content or other data provided by Customer in connection with any Support (“Support Content,” together with Customer Content, the “Service Content”) to provide and improve the Cloud Service in accordance with the Agreement. Couchbase may use an aggregated and de-identified version of the Service Content for its internal business purposes.
6.2. Customer represents and warrants and shall ensure that it has the right to provide the above right and license and that neither the Service Content itself nor its use by Couchbase for purposes under the Agreement shall violate any applicable law or infringe, misappropriate or otherwise violate any rights of any third party, including intellectual property rights, privacy rights and other rights under contract or law.
6.3. Customer represents and warrants that it shall not transmit to Couchbase, in connection with the Cloud Services, any Service Content that includes any Personal Data (as defined in the DPA) that constitutes: (a) employment, genetic, biometric or health information (including “protected health information” as defined under the Health Insurance Portability and Accountability Act) or similar laws; (b) “personal information” about individuals under the age of thirteen (13) as such term