Capella Cloud Service Subscription Agreement

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 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 February 24, 2022.

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.

“Clusters” mean any database deployments in the Cloud Service.

“Cloud Control Plane” means 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.

“Couchbase Privacy Policy” means the Couchbase Privacy Policy available at  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.

“DPA” means Couchbase’s Data Processing Addendum available at 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, 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 (subject to the terms of Section 12.3 below), 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 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 the internal use of Customer and, to the extent expressly authorized in an Order, Customer’s Affiliate(s). From time to time, Couchbase may provide upgrades, modifications, patches, enhancements, or fixes for the Cloud Service and the Documentation to its customers generally which shall become part of the Cloud Service and the related Documentation and subject to this Agreement.

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”). By providing Registration Information, Customer and any Authorized Users hereby consent to receive email communications from Couchbase. Customer shall notify Couchbase immediately of any unauthorized use. Couchbase reserves the right, but is not required, to reset or terminate any Registration Information or account credentials if Couchbase suspects any unauthorized access or use. ​​Customer is responsible for the use of the Cloud Service by Authorized Users and any other person(s) to whom Customer has given access to the Cloud Service, even if Customer did not authorize such use.

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) sell, resell, transfer, sublicense or otherwise make available any part of the Cloud Service and/or Documentation to any third party, provided that Customer may use the Cloud Service in connection with an application Customer offers to its own end users as long as such end users cannot access the Cloud Service directly; (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 provide to or through the Cloud Service any information or materials 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 and/or Documentation for the purposes of benchmarking or competitive analysis of the Cloud Service for publication, or developing, using, providing, or supporting products or services competitive to Couchbase; (f) alter, translate, reverse engineer, 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 such restriction is prohibited; (g) remove or otherwise alter any Couchbase proprietary notices, trademarks, warranties or disclaimers in or relating to the Cloud Service or Documentation; (h) 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; or (i) access or use the Cloud Service in a way intended to avoid incurring fees or exceeding usage limits.

5. Customer Obligations. Customer acknowledges and agrees that in order to utilize the Cloud Service, Customer is responsible for: (i) selecting a 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 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); (vii) any software application or service that Customer makes available to Customer’s end users that interfaces with the Cloud Service, and (viii) notifying Couchbase immediately if Customer believes there has been unauthorized access to or activity with respect to the Cloud Environment or Cloud Service.

6.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.

7. Customer Content.

7.1. 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.

7.2. 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.

7.3. 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: (i) employment, genetic, biometric or health information (including “protected health information” as defined under the Health Insurance Portability and Accountability Act) or similar laws; (ii) “personal information” about individuals under the age of thirteen (13) as such term is defined under the Children’s Online Privacy Protection Act or similar law; (iii) government issued identification numbers, including social security numbers, driver’s license numbers and other state-issued identification numbers; (iv) cardholder or sensitive authentication data, as those terms are defined in the Payment Card Industry Data Security Standards, or financial account information, including bank account numbers (other than such data necessary to pay for any amounts payable to Couchbase in connection with the Cloud Services); (v) the combination of a username or email address along with a password or security question and answer that would permit access to an online account (except for Registration Information); (vi) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other personal data governed by Article 9 of the European Union General Data Protection Regulation; (vii) personal data relating to criminal history; or (viii) any other information or combinations of information that falls within the definition of “special categories of data” under European Data Protection Laws or any other Applicable Data Protection Laws. If any such Service Content is inadvertently transmitted to Couchbase, Customer acknowledges and agrees that it shall cooperate with Couchbase to securely delete such Service Content.

7.4. With respect to any Personal Data (as defined in the DPA) processed by Couchbase in connection with providing the Cloud Service, Couchbase shall comply with the DPA. We may collect certain registration and usage data about you and your usage of the Cloud Services. With respect to any Personal Data obtained by Couchbase as a controller, Couchbase shall comply with the Couchbase Privacy Policy. The DPA and the Couchbase Privacy Policy are hereby incorporated into the Agreement.

8. Professional Services.

8.1. The parties may agree that Couchbase shall provide consulting services (which may result in reports, recommendations, or other deliverables) and training as expressly identified in the applicable Order or SOW (collectively, the “Professional Services”) signed by both parties. Couchbase will render the Professional Services on a commercially reasonable basis in a professional and workmanlike manner in accordance with the terms and conditions of the Agreement and the applicable Order or SOW.

8.2. Unless explicitly set forth in an Order or SOW, any Professional Services purchased under the Agreement shall expire upon the end of the applicable subscription period set forth in an Order up to and inclusive of any expiration date or after twelve (12) months if no expiration date is specified (in each case, the “Services Expiration Date”). Any unused Professional Services after the e