Managed Services Terms, Azure Services

Managed Services Terms, Azure Services

These Managed Services Terms are incorporated by reference into your ("Customer") existing Enterprise Subscription License Agreement or master agreement (“Agreement”) by and between Couchbase and Customer and set forth the terms under which Customer may use certain Couchbase Managed Services as defined below under Orders governed by the Agreement. Each term used and not so defined in these Managed Services Terms shall have the same meaning as the term is used in the Agreement.


Note that this Agreement cannot be changed without a mutually signed amendment. Any Orders placed under this version of these terms may only be modified by a mutually signed amendment.


Pursuant to the terms and conditions of the Agreement, the parties hereto agree to amend and add the following terms to the Agreement:


Managed Services” means Couchbase’s managed services provided by a third party in connection with Azure Services which services are ordered by Customer as set forth on corresponding Order(s).  If Managed Services are part of an Order, then the following additional Managed Services Terms shall apply to the Agreement:


1.1 With respect to your purchase of a service use right associated with a software-as-a-service, platform-as-a service, or infrastructure-as-a-service offering operated and provided by Couchbase’s Third Party Service Provider (“Couchbase’s TPS”), we are selling you an intangible right to access, use, and/or participate in such Couchbase’s TPS (“Service Use Right”) for a specified usage duration (“Subscription Term”) and we are not the provider or operator of such third party Managed Services. Your use of third-party Managed Services is subject to the relevant terms of use or other license terms between you and the third-party Managed Services operator (and not us) related to such third-party service (“Service Terms”). You agree and acknowledge that these terms only apply to our sale of Service Use Rights to you, and do not apply to your use of a third-party Managed Services. The company or entity which operates the third-party Managed Services is solely responsible for fulfilling, operating and providing the third-party Managed Services for which we resell you a Service Use Right. You agree to hold us harmless from and against any liability resulting from your use of, or inability to use, a third party Managed Services, except that we (either directly or through our subcontractor) will provide reasonable customer support to you in connection with the fulfillment to you of access credentials as part of your purchased Service Use Right. We disclaim any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to the availability, use or results from using any third-party Managed Services for which we sell Service Use Rights.


1.2 Customer agrees and confirms that they have the legal right and authority to enter into this Agreement including any Order(s) or other related documents and will continue to have such legal right and authority during the Subscription Term.


1.3 Customer agrees to use the Managed Services only for lawful purposes and in accordance with all Customer obligations set forth in this Agreement, including, but not limited to, acceptance of and adhering to the policies pursuant to the conditions below:


a) Subject to subsection b) below, Couchbase’s TPS may suspend the right to access or use any portion or all Managed Services without liability if: (i) the Managed Services have been accessed or manipulated by a third party without consent; (ii) suspension of Managed Services is necessary to protect Couchbase’s customers and the continued use of the Managed Services may adversely and materially impact the Managed Services or the systems or content of any other Couchbase customer; (iii) suspension is required by law, statute, regulation, rule or court order; or (iv) Managed Services are being used (or have been or will be used) by Customer in violation of the Order or the Agreement; (v) a payment for Managed Services is overdue and not properly disputed; (vi) Couchbase receives notice from Microsoft Azure of a violation of the Azure Policies (collectively, the “Policies”); or (vii) Microsoft Azure terminates the Managed Services for Customer, or Couchbase. Under the foregoing circumstances, such suspension shall continue only so long as reasonably required to resolve or address the underlying reason for the suspension. The Policies are legal obligations of Couchbase, the Customer, and are subject to change without notice, and violations may result in access to the Managed Services being suspended. Couchbase or Couchbase’s TPS will make commercially reasonable efforts, circumstances permitting, to provide Customer with written notice of any such suspension or termination. Couchbase shall have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any such suspension.


b) For Sections 1.3 (a)(i), (ii), and (iii), Couchbase or Couchbase’s TPS will give Customer reasonable advance written notice of a suspension and a reasonable chance to cure the grounds on which the suspension is based and will cooperate with Customer to the extent reasonably required by Customer to resolve the issue, unless Couchbase or Couchbase’s TPS determines, in Couchbase’s reasonable judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Couchbase or its other customers from a security risk or the suspension is ordered by a court or other judicial or governmental body or required by law, statute, regulation, rule, legal proceeding or other governmental request, in which case Couchbase or Couchbase’s TPS may suspend the Managed Services immediately. For Sections 1.3 (a)(v), Couchbase or Couchbase’s TPS will give Customer at least fifteen (15) days advance written notice prior to suspending the Managed Services and will only suspend such Managed Services if Customer, does not cure the grounds on which the suspension is based prior to the end of such notice period. For Section 1.3 (a) (v), any suspension of Managed Services shall continue until all outstanding sums are remitted.


If Couchbase or Couchbase’s TPS suspends the right to access or use any portion or all of the Managed Services for any reason other than due to the acts or omissions of Couchbase: Customer remains responsible for any fees and charges during any period of suspension and for any Managed Services which Customer continues to have access to, and applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and Customer will not be entitled to any credits during any period of suspension pursuant to Exhibit A below.


1.4 Customer will not: (i) use the Managed Services except as permitted hereunder; (ii) decompile, disassemble or reverse engineer any software underlying the Managed Services; (iii) host, sell, resell, rent, exploit or lease the Managed Services or any portion of the Managed Services or use the Managed Services for time sharing purposes or on a service bureau basis; (iv) remove any copyright or proprietary notices contained in the Managed Services or place any third party's trademarks on the Managed Services or otherwise imply that the Managed Services was developed, owned by or proprietary to Customer or any other third party ; (v) obtain or attempt to obtain the Managed Services by any means or device with intent to avoid paying the Fees; (vi) enable access to the Managed Services by any third party except as otherwise provided in this Agreement or with the prior written consent of Couchbase ; (vii) use the Managed Services to access, alter or destroy any information of another Customer of Couchbase by any malicious means or device; (viii) use the Managed Services to introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of another party's computer, property or information; (ix) use the Managed Services intending to damage, disable, overburden or impair any Couchbase or Couchbase’s TPS server or network(s) connected to any server or interfere with any other party's use and enjoyment of the Managed Services; (x) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Managed Services; (xi) use the Managed Services to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy or other intellectual property (including copyright) of others or otherwise violate any applicable law; (xii) circumvent or modify any security technologies included as part of the Managed Services; (xiii) perform any security integrity review, penetration test, load test, denial of Managed Services simulation or vulnerability scan (including without limitation by use of any tool designed to automatically emulate the actions of a human user in connection with such testing) on the Managed Services; or (xiv) attempt or permit any third party to do any of the foregoing. Couchbase may suspend usage of the Managed Services by any user, without notice, pending any investigation of misuse. However, Couchbase or Couchbase’s TPS shall provide Customer with notice of suspension as soon as reasonably practicable, provided that Couchbase's or Couchbase’s TPS security team has determined that such notice shall not cause any delay or interfere with its investigation or cause any damage or harm to Couchbase's systems, or delivery of service.


1.5 The Managed Services may be controlled by the United States and other governments for export, re-export, deemed export, and import purposes (jointly, export and import). Customer agrees to comply with all such export and import laws, regulations, directives, rules, and controls regarding the Managed Services including but not limited to the United States Export Administration Regulations, International Traffic in Arms Regulations, Office of Foreign Asset Control directives, sanctions, prohibitions and restrictions, and all treaties, Executive Orders, statutes, amendments and supplements thereto (laws). Customer is responsible for obtaining all export and import licenses, authorizations, permissions, and to accomplish other acts to comply with all such laws. The Managed Services is commercial and shall be used for non-prohibited, commercial purposes by non-prohibited end-users and shall not be exported or transferred to any end-user located in a country embargoed by the United States, presently North Korea, Iran, North Sudan, Syria and Cuba, or to a national of such a country, without the appropriate license or authorization. Customer will not export the Managed Services to a person or entity denied, prohibited, debarred or sanctioned (denied) by the United States Government, and Customer represents that it is not such a denied person or entity.


1.6 Customer Data. Subject to the terms of this Agreement, Customer hereby grants to or Couchbase’s TPS a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of the Customer Data, in each case solely to the extent necessary to provide the applicable Managed Services to Customer. “Customer Data” means electronic data and information uploaded, submitted or otherwise transmitted to or through the Managed Services deployed by Customer, or Couchbase’s TPS may also access Customer's account in order to respond to Customer's support requests. Unless Couchbase or Couchbase’s TPS provides Customer with prior written notice, Customer Data will be stored in the United States for processing, in connection with its provision of the Managed Services or Couchbase’s TPS shall process Customer Data via the Managed Services on behalf of Customer only in accordance with the terms of this Agreement and as necessary to provide the Managed Services. In addition to any obligations of Couchbase in the Agreement, upon expiration or termination of this Agreement for any reason: (a) or Couchbase’s TPS shall, and shall cause its personnel, to cease and desist all access and use of any Customer Data and Customer network, (b) or Couchbase’s TPS shall delete all copies of Customer Data within ninety (90) days.


1.7 Security. Couchbase or Couchbase’s TPS provides Customer with the option to encrypt the transmission of Customer Data and the Managed Services will include administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data as further described in the Documentation. Customer acknowledges that it is the Customer's responsibility to encrypt the transmission of Customer Data should Customer wish to protect it. In the event Customer decides not to utilize encryption and transmit Customer Data unencrypted over a network, Customer assumes all related risks for doing so. Couchbase will not be liable for Customer's use of the Managed Services (including Customer' s transmission of Customer Data) over the internet or other network. Liability for Couchbase's failure to maintain or protect Customer Data is limited by the Limitation of Liability herein.


1.8 Rights in Customer Data. Customer represents and warrants that it has the rights and licenses necessary to grant the license above and to otherwise provide Customer Data to Couchbase or Couchbase’s TPS in connection with Customer's use of the Managed Services and that by providing its Customer Data it will not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or applicable laws. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information (“PII”) of such data subjects via the Managed Services by Couchbase or Couchbase’s TPS and/or Customer. Customer shall be solely responsible for ensuring that any processing of Customer Data by Couchbase or Couchbase’s TPS and/or Customer via the Managed Services does not violate any applicable laws. Customer shall not process or submit to the Managed Services any Customer Data that includes any (i) "protected health information," as defined under the Health Insurance Portability and Accountability Act; (ii) "personal information" about individuals under the age of 13 as such term is defined under the Children's Online Privacy Protection Act (iii) government issued identification numbers, including Social Security numbers, driver's license numbers and other state-issued identification numbers; (iv) financial account information, including bank account numbers; (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; (vi) financial account number or payment card data, including credit card or debit card numbers, and (vii) "special categories" of personal data, as defined under Directive 95/46/EC of the European Parliament, Regulation (EU) 2016/679 of the European Parliament, or any national laws adopted pursuant to any of the foregoing, about residents of Switzerland and any member country of the European Union, including personal data revealing racial or ethnic origin, political opinions, religious beliefs, trade union member ship, physical or mental health or condition, sexual life, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense. Couchbase shall not be liable to the extent that the Customer processes data through, or submits data to, the Managed Services in breach of this section. Couchbase, Couchbase’s TPS, and Customer shall comply with their respective obligations under applicable data protection legislation. Couchbase’s TPS will have access to PII of Customer in providing the Managed Services. To the extent Couchbase’s TPS has access to PII, such access will be incidental, and the respective party will remain the data controller of PII at all times. Couchbase’s TPS will use any PII to which it has access strictly to deliver the Managed Services.


1.9 Customer agrees to ensure that all contacts listed on its associated Azure sub-account are accurate, complete and maintained as current at all times during the Subscription Term.


1.10 Customer agrees to regularly backup and validate the integrity of backups of any of its Customer Data stored in the Managed Services on an environment separate from the Managed Services.


1.11 Customer agrees to permit Couchbase or Couchbase’s TPS to use its contact information provided for purposes of providing the Managed Services to contact Customer regarding questions related to workloads and IT infrastructure needs. Couchbase or Couchbase’s TPS will not utilize contact information to engage in unsolicited offers of unrelated service offerings to a Customer except to the extent (i) information about such Couchbase service offerings is requested by a Customer and (ii) Couchbase or Couchbase’s TPS independently maintains a service relationship with the Customer.


1.12 High Risk. Customer agrees to use the Managed Services for commercial purposes only and may not use the Managed Services in any situation where failure or fault of the Managed Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. By way of illustration, but without limitation thereof, Customer may not with direct knowledge, use, or permit any other person to use, the Managed Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or critical medical support devices.


1.13 Customer agrees to comply with the Azure Policies as though Customer is a direct customer of Microsoft Azure. “Azure Policies” means the Azure legal terms and conditions found at or such other URL(s) as Microsoft may designate in the future. Azure Policies include the Microsoft Online Services Agreement, which incorporates the Microsoft Online Services Terms, and the Microsoft Online Services Privacy Statement. Azure Policies does not include the Azure AUP or the Azure Service Level Agreements, which is defined as the Azure SLA. Notwithstanding anything to the contrary, with respect to all references to the Azure Policies in these terms, in the event of a conflict between the Azure Policies and any separately negotiated written terms and conditions entered into between Customer and Microsoft governing the Azure Services, the terms of such agreement will govern and control. Customer agrees to comply with the Azure Policies as though such entity was a direct customer of Microsoft.


1.14 End of Managed Services. Upon the termination of this Agreement or any Order: (i) all rights and licenses granted by Couchbase or Couchbase’s TPS to Customer under the Order shall cease immediately; (ii) Couchbase, Couchbase’s TPS, and Customer shall return to the disclosing party, or destroy, all Confidential Information (as defined herein) of the other disclosing Party within 30 days following such termination, except as required to comply with any applicable legal or accounting record-keeping requirements; (iii) Customer shall erase and remove all copies of all Couchbase or Couchbase’s TPS software from any computer equipment and media in Customer’s possession, custody or control. Customer’s data will not be retained by Couchbase’s TPS more than fourteen (14) days following termination of this Agreement or any Order.


1.15 IP Addresses. Upon expiration or termination of this Agreement or any Order, Customer must discontinue use of the terminated or expired Managed Services and relinquish use of the IP addresses and server names assigned to by Couchbase or Couchbase’s TPS in connection with the terminated or expired Managed Services.


1.16 Software Provided by Couchbase’s TPS. Couchbase grants Customer during the Subscription Term a nonexclusive, non-sublicensable, nontransferable (except as otherwise provided in this Agreement), royalty-free worldwide license, to use the Couchbase’s TPS software. Customer shall not, and shall not permit others to: (a) modify, copy, or otherwise reproduce Couchbase’s TPS software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of Couchbase’s TPS software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer Couchbase’s TPS software right to use Couchbase’s TPS software; or (d) remove, modify or obscure any intellectual property on the Couchbase’s TPS software. All rights not granted to Customer are reserved by Couchbase or Couchbase’s TPS and Couchbase’s suppliers. Couchbase’s TPS software is provided by “AS IS”. If Couchbase’s TPS software uses any third-party software on a Customer configuration provided by Couchbase’s TPS, then Couchbase’s TPS represents and warrants to Customer that Couchbase’s TPS have the legal right to use the software. If Couchbase’s TPS installs any third party software as part of the delivery of Managed Services to Customer as specified in an Order, or if Couchbase’s TPS has agreed to install or otherwise manage third party software then Couchbase’s TPS represents and warrants Couchbase’s TPS has a written license agreement with the vendor that permits Couchbase’s TPS to perform these activities.


1.17 Compliance with Anti-Corruption Regulations. Couchbase, Couchbase’s TPS and Customer will comply with all applicable laws against bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and like illegal or unethical corporate behavior laws, including the UK Anti-Bribery Act and the US Foreign Corrupt Practices Act. No party to this Agreement or their respective Representatives will, directly or indirectly, offer, pay or provide anything of value to any agent, official or employee of any governmental entity, political party, public international organization, or any candidate for such offices (“Government Officials”) to improperly influence any act or decision of such Government Officials for the purpose of promoting the business interests of either Couchbase, Couchbase’s TPS or Customer in any respect or to otherwise improperly promote the business interests of a party. No party to this Agreement will retaliate against anyone who has, in good faith, reported a possible violation of this Section or refused to participate in activities that violate this Section.


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