Master Agreement
This Master Agreement (together with any Orders entered hereunder, Product-Specific Terms (as defined below) specific to the Software or Services, as applicable, attachments hereto or others terms and conditions incorporated herein by reference, the “Agreement”), is between the Cockroach Labs entity (“Cockroach Labs”, “we”, or “us”) and the person or entity (“Company” or “you”), set forth in the signature page hereto or an Order which refers to this Agreement. Company and Cockroach Labs may be referred to herein together as the “Parties” or individually as a “Party”. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and Cockroach Labs agree as follows:
1. AGREEMENT.
1.1. Orders. Cockroach Labs may issue an offer on a Partner online marketplace or a quote, in each case, specifying products or services to be provisioned to Company hereunder and the fees for such products or services (each, a “Quote”). A Quote constitutes a binding and enforceable agreement between Company and Cockroach Labs for the purchase and use of products or services incorporating all the terms of this Agreement (such Quote, an “Order” upon: (a) Company (or the applicable Partner) and Cockroach Labs signing such Quote; (b) Company (or the applicable Partner) issuing a purchase order referencing such Quote (or a Partner Form based on such Quote) (provided that such Quote will not constitute an Order if such purchase order is rejected by Cockroach Labs); or (c) Company completing an order referencing such Quote on a Partner online marketplace.
1.2. Product-Specific Terms. The Product-Specific Terms specific to the applicable Software and/or Services to this Agreement will also apply to the extent an Order is for the products, services, or software described in such Product-Specific Terms. This Agreement solely governs any use of Software or Services made available pursuant to such Order(s) except to the extent expressly indicated otherwise in such Order(s).
1.3. Reseller Arrangements. Company may procure the Software or Services through a Partner pursuant to a separate agreement between Company and such Partner (“Reseller Arrangement”). Cockroach Labs will only be obligated to provide the Software or Services to Company in connection with the Reseller Arrangement to the extent that Cockroach Labs and such Partner have entered into an Order for such purchase. Company acknowledges and agrees that, solely in connection with the purchase by Company pursuant to a Reseller Arrangement: (a) notwithstanding anything to the contrary in this Agreement, Section 2 (Payment; Taxes) will be without effect and the terms of the Reseller Arrangement covering such subject matter will apply instead; (b) all payments of fees, refunds, and credits, if any, will be payable by or to such Partner; (c) this Agreement governs Company’s use of the Software or Services, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) the terms of the Reseller Arrangement are not enforceable against or binding upon Cockroach Labs, including any warranties, representations, promises or commitments regarding the Software or Services contained therein.
2. PAYMENT; TAXES.
2.1. Payment. Company will pay Cockroach Labs the amounts due under this Agreement, including the fees set forth in each Order (such amounts, the “Fees”). Without limiting the foregoing, Cockroach Labs will bill Company the Fees in accordance with the payment terms set forth in the applicable Order and Company will pay such Fees within thirty (30) days from the date of Cockroach Labs’ invoice. Subject to the foregoing, Fees are due in advance upon the commencement of each Order unless expressly specified otherwise in such Order. Payment will be made without any right of set-off or deduction. Fees will be accrued and paid in US dollars and are nonrefundable. Company will promptly provide Cockroach Labs with information it reasonably requires to complete the payment review process. Company is responsible for providing complete and accurate billing and contact information to Cockroach Labs and notifying Cockroach Labs promptly of any changes to such information.
2.2. Late Payment. Amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower) and any costs of collection incurred by Cockroach Labs. For payments that are late, without limiting Cockroach Labs’ other rights and remedies, Cockroach Labs may immediately suspend Company’s access to or require Company to cease using the applicable Software and Services until payment in full has been made.
2.3. Taxes. Except and solely to the extent as otherwise indicated by Cockroach Labs, Fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Company shall be responsible for payment of such taxes and duties of any kind, whether foreign or domestic, other than taxes based on Cockroach Labs’ net income. Without limitation, Company will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Cockroach Labs with an exemption certificate acceptable to the applicable authorities.
3. TERM AND TERMINATION.
3.1. Term; Automatic Renewal. This Agreement will be effective from the date it is entered into and continue until all Orders entered into hereunder have terminated (the “Term”). Unless expressly stated otherwise, Orders entered into under this Agreement and all Software and Services licensed thereunder, excluding any Software or Services that expires prior to the end date of the Order, will automatically renew for successive one (1) year terms at Cockroach Labs’ then-current list prices (adjusted pro rata to be an annual rate as applicable) unless either Party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the then-current term of such Order.
3.2. Suspension; Termination for Breach or Cause. Cockroach Labs may suspend in whole or in part use of Software or Services hereunder, including access to Company’s Services account(s) and any data housed therein, immediately if (a) Cockroach Labs has a good faith reasonable belief that the use of the applicable Software or Service hereunder (i) poses a risk to the Software or Service, to Cockroach Labs or Cockroach Labs’ vendors, partners, or customers, (ii) violates this Agreement or applicable law, or (iii) infringes or violates any third party right, (including intellectual property right), or (b) Company has made an assignment for the benefit of creditors or similar disposition of assets, or become the subject of any bankruptcy, liquidation, reorganization, dissolution, or similar proceeding. Either Party may terminate this Agreement or an Order for cause if the other Party materially breaches this Agreement or that Order (as applicable) and does not remedy that breach within thirty (30) days after receipt of notice of the breach. If Cockroach Labs suspends or terminates Company’s use of any Software or Services in whole or in part pursuant to this section, all Fees which would have been otherwise owed in respect of such Software or Services pursuant to the Order absent such suspension or termination will be due and payable within thirty (30) days, without discount or pro rata reduction.
3.3. Effect of Termination. Upon termination of any Order or this Agreement, Cockroach Labs will delete the applicable Company Data in accordance with its policies, all rights granted to Company under that Order or this Agreement will immediately terminate and Company will immediately cease, and have no further rights hereunder to continue, use of the applicable license keys provided and the Software and Services provided thereunder. Notwithstanding termination of this Agreement or any Order, any provisions of this Agreement or any Order that by their nature are intended to survive, will survive termination.
4. PROPRIETARY RIGHTS; BETA FEATURES.
4.1. Cockroach Labs Ownership. Except for the rights, permissions, and licenses explicitly granted pursuant to an Order, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Software and Services, including their interfaces, extensions and derivative works, are and shall remain the exclusive property of Cockroach Labs and/or its suppliers. Cockroach Labs and its suppliers reserve all rights not expressly granted in this Agreement.
4.2. Feedback. Company is not required to give Cockroach Labs any request, suggestions, enhancement ideas, specifications, or other feedback regarding the Software or Services or any other Cockroach Labs’ software, products or services (“Feedback”). If Company does provide Feedback, Company grants Cockroach Labs and its Affiliates a worldwide, perpetual, irrevocable, fully paid and royalty-free right to fully exploit, use and incorporate into Cockroach Labs’ products, services or software any such Feedback.
4.3. Usage Data; Data Collection. Cockroach Labs may track and analyze Usage Data to provide, maintain, protect and improve the Software and Services and to create aggregated and anonymized statistics. Cockroach Labs’ collection of personal information through its Services (excluding, for the avoidance of doubt, any Company Data or any data that Company uploads, manages and uses with the Software) and how it is used is described in more detail in the Cockroach Labs’ Privacy Policy.
4.4. Beta Features. Company expressly acknowledges that Beta Features that are made available to it are still undergoing testing and may still have defects or other bugs which are not yet identified or which, even if known to Cockroach Labs, have not been communicated to Company or corrected. Cockroach Labs has no obligation to maintain or fix Beta Features or to ever release Beta Features as supported features. Company understands that its use of Beta Features is at its own risk and that no warranties set forth in this Agreement will apply to Beta Features.
5. CONFIDENTIALITY.
5.1. Confidentiality Obligations. Cockroach Labs and Company will retain in confidence all Confidential Information transmitted by the other party to it during the term of this Agreement, and, solely to the extent retained by Cockroach Labs or Company in accordance with the terms hereof, for a period of three (3) years beyond the Term. The parties will make no use of the other party’s Confidential Information except to further the purposes set forth in this Agreement. In the event of termination of this Agreement, each Party will delete the other Party’s Confidential Information upon request, subject to retaining such copies of Confidential Information as may be required for such Party’s compliance with internal backup policies or applicable law.
5.2. Exclusions; Required Disclosures. Notwithstanding Section 5.1 (Confidentiality Obligations), neither Cockroach Labs, nor Company shall have an obligation to maintain the confidentiality of Confidential Information that (a) is now or subsequently becomes generally known or available by publication, commercial use or otherwise through no fault of the recipient; (b) is rightfully known by the recipient at the time of disclosure and is not subject to restriction; (c) is independently developed by the recipient without use of the discloser’s Confidential Information; or (d) is lawfully obtained from a third-party who has the right to make such disclosure and is not subject to restriction. Further, a Party may disclose Confidential Information as required by government or judicial order, provided the recipient gives the disclosing party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure.
6. REPRESENTATIONS AND OBLIGATIONS.
6.1. Mutual Representations and Obligations. The Parties each represent and covenant that they have all necessary rights and authority to enter into this Agreement and each Order.
6.2. Cockroach Labs Representations and Obligations. Cockroach Labs represents and covenants that it has and will have all necessary rights and authority to provide the Software and Services to Company. Cockroach Labs will (a) perform all Services in a professional and workmanlike manner and (b) comply with applicable Laws in its performance hereunder.
6.3. Company Representations and Obligations. Company will (a) not use the Services or Software in a way that violates, or causes Cockroach Labs to violate, any applicable Laws, (b) not alter or remove any proprietary rights notices or legends appearing on or in the Software, and (c) be responsible for all use of the Software or Services hereunder, including without limitation any unauthorized use of Company’s Services accounts.
7. INDEMNITY.
7.1. Company Indemnity. Company shall indemnify, defend, and hold Cockroach Labs and its Affiliates and licensors, and its and their employees, officers, directors, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with Company’s use of or access to the Software or Services, except for Cockroach Labs Indemnified Claims.
7.2. Cockroach Labs Indemnity. Cockroach Labs shall indemnify, defend, and hold Company harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent arising out of or in connection with a third-party claim that the Software or Services infringes or misappropriates such third party’s intellectual property rights (a “Cockroach Labs Indemnified Claim”). Cockroach Labs Indemnified Claims do not include: (a) combinations or use of the Software or Services with any products, processes or materials not provided by Cockroach Labs where the alleged infringement relates to such combination or use, (b) modifications to the Software or Services made by Company or on Company’s behalf by any third party, any unauthorized third party, or made by Cockroach Labs at Company’s request, to the extent the alleged infringement relates to such modification, (c) infringement or misappropriation of any intellectual property right in which Company has an interest, (d) any Third Party Works (if applicable) or (e) claims that the Company Data infringes or misappropriates a third party’s intellectual property rights. If the Software or Services become, or, in Cockroach Labs’ opinion, is likely to become the subject of an injunction, Cockroach Labs may, at its option and in its sole discretion, (i) procure for Company the right to continue using such Software or Service as contemplated hereunder, (ii) modify the Software or Service to make it non-infringing (without substantially compromising its functionality), or, if (i) and (ii) are not reasonably practicable, then (iii) terminate Company’s right to use the Software or Service and refund applicable Fees actually paid for the applicable Software or Service with a prorated deduction to account for Company’s use thereof prior to such termination of use. The foregoing states the entire liability of Cockroach Labs with respect to infringement of intellectual property rights.
7.3. Indemnity Procedure. Each party’s indemnification obligations under this Agreement are expressly contingent upon the party seeking indemnification giving the indemnifying party: (a) prompt written notice of any such claim or allegation for which indemnity is sought; (b) sole control over the defense and settlement thereof; and (c) reasonable assistance in such defense or settlement as the indemnifying party may request.
8. LIMITATION OF LIABILITY.
8.1. Exclusions. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR INTENTIONAL BREACH OR COMPANY’S PAYMENT OBLIGATIONS, THE AGGREGATE LIABILITY OF EACH PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE TO COCKROACH LABS BY COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.
9. MISCELLANEOUS.
9.1. Governing Law; Severability; Notice. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York, without applying conflicts of law rules and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act as may be enacted in any applicable jurisdiction. THE JURISDICTION AND VENUE FOR ALL DISPUTES HEREUNDER WILL BE THE STATE AND FEDERAL COURTS IN THE COUNTY AND STATE OF NEW YORK, AND THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. All notices under this Agreement must be in English and in writing. Company may notify Cockroach Labs by certified or registered mail, return receipt requested, sent to 125 W. 25th Street, 11th Floor, New York, NY 10001, ATTN: Legal Notice or by email to notices@cockroachlabs.com, or such alternative notice contact information as may be provided by Cockroach Labs to Company. Cockroach Labs may notify Company by certified or registered mail, return receipt requested, sent to the address and email provided by Company on the Order.
9.2. Assignment. Neither Party may assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without the other Party’s prior written consent, except that this Agreement may be assigned without consent to a person or entity who acquires all or substantially all of the assigning party’s assets, stock, or business, or by Cockroach Labs to its Affiliate.
9.3. Subcontractors. Each Party is permitted to use Subcontractors in connection with this Agreement, provided that it is liable for their acts or omissions as if they were such Party’s own acts and omissions.
9.4. No Waiver; Limitations. Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Company more than one (1) year after the cause of action has accrued.
9.5. Export and Trade Compliance. Company will comply with all applicable import, export, and sanctions Laws, including without limitation applicable economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control and export regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security. Company represents and warrants that neither Company, nor Company’s employees or any party that owns or controls Company, nor any third party that Company enables to access the Software or Services, is subject to sanctions or designated on any list of prohibited or restricted parties, including those maintained by the UN Security Council, the U.S. Government (including Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders Lists), the European Union, or other applicable government authority.
9.6. U.S. Government Restricted Rights. Elements of the Software or Services may be commercial computer software. If the Software or Services are being acquired by or on behalf of the U.S. Government, the government’s rights in such software and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose software or any documentation, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software and Services are developed fully at private expense. All other use is prohibited.
9.7. Force Majeure. Except for performance of a payment obligation, neither Party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, epidemics or pandemics, or any causes beyond the reasonable control of that Party.
9.8. Publicity. During the Term of this Agreement: (a) Company will be a reference for Cockroach Labs’ customer prospects and Cockroach Labs may use Company’s name and logo in customer lists and informational materials related to the Software and Services, (b) Company will participate in a Software and Services case study that describes Company’s successful use of the Software and Services and such case study may be freely published by Cockroach Labs across marketing channels and outlets, provided that such case study must be approved by Company prior to initial publication, such approval not to be unreasonably withheld or delayed, (c) Company will make its personnel available to participate (e.g., as a panelist or presenter) in a recorded webinar, Cockroach Labs-sponsored event, or third-party event, at Cockroach Labs’ request, and (d) Company will speak in good faith with members of the press (subject to Company’s reasonable internal approvals and protocols). Neither Party will use the other’s name or logo other than as permitted hereunder or as otherwise authorized by such Party.
9.9. Entire Agreement. This Agreement together with the applicable web pages incorporated herein by reference constitute the entire agreement between the Parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the Parties hereto are expressly canceled. Any terms and conditions of any instrument issued by Company (including any purchase order, confirmation, or other similar document) in connection with this Agreement shall be of no force or effect unless signed by Cockroach Labs. Any modifications or waivers of this Agreement must be in writing and signed by both Parties hereto, provided that Cockroach Labs may amend this Agreement (including any applicable web pages incorporated herein by reference) by posting an updated version of this Agreement and informing Company of the changes at least thirty (30) days’ prior to the updates taking effect, except such changes that are required to comply with applicable law, rule, or regulation or where prior notice is not reasonably practicable.
10. DEFINITIONS. Certain capitalized terms used herein are set forth below, other terms shall have the respective meanings set forth elsewhere in the Agreement or the applicable Order(s).
“Affiliates” means with respect to a party, an entity that directly or indirectly controls, is controlled by, or is under common control with such party. For purposes of this definition, “control” means direct or indirect ownership or control of either more than 50% of the voting interests of the subject entity or the power to direct the management or policies of the subject entity.
“Applications” means the Company applications that are specified in the Order (if any).
“Beta Features” means any products or features (including without limitation applicable Software or Services products and features), which are delineated as “Beta”, “Alpha”, “Preview”, “Experimental”, or other label identifying such Service or feature as being made available prior to general commercial availability, on pre-production release or testing basis.
“Cloud Managed Services” means the CockroachDB database software as a service offering(s) made available by Cockroach Labs.
“Company Data” means data that Company uploads, manages or uses within the Cloud Managed Services.
“Confidential Information” means confidential and non-public information that is provided by one party to the other party hereunder and which is marked or otherwise identified as proprietary or confidential, or which by its nature would be understood by a reasonable person to be confidential.
“Development” refers to non-production use of Software or Services in an internal development environment for design, prototyping, or development purposes only.
“Documentation” means, with respect to a product or service provided hereunder, the official technical documentation made available by Cockroach Labs regarding the proper use and available functionality of such product or service, currently made available at https://www.cockroachlabs.com/docs, which for the avoidance of doubt excludes any results or outputs provided by any interactive Q&A functionality, automated chatbots, or artificial intelligence-powered tools.
“Laws” means all laws, rules and regulations of the United States and of any other applicable legal authority.
“Partner” means a third party authorized by Cockroach Labs to offer, through its online marketplace; resell; or distribute; Software or Services.
“Partner Form” means an ordering document between Company and a Partner for the purchase of Cockroach Labs products or services based on a Quote between Cockroach Labs and such Partner.
“Pre-Production” refers to non-production use of Software or Services for quality assurance, testing, or staging purposes.
“Product-Specific Terms” means any additional terms and conditions specific to the Software, set forth at www.cockroachlabs.com/cockroachdb-master-agreement/self-hosted or Services, including Cloud Managed Services set forth at www.cockroachlabs.com/cockroachdb-master-agreement/cloud or Technical Services set forth at https://www.cockroachlabs.com/cockroachdb-master-agreement/technical-services, made available by Cockroach Labs to Company, pursuant to Order(s) entered hereunder.
“Production” refers to use of Software or Services in production (e.g., in operation or deployed for actual business use) for any purpose which does not qualify as Pre-Production or Development.
“Release Support Policy” means the release support policies set forth at https://www.cockroachlabs.com/docs/releases/release-support-policy.html.
“Services” means services, including as applicable the Cloud Managed Services or Cockroach Labs’ provision of technical support, made available by Cockroach Labs to Company pursuant to Order(s) entered into hereunder.
“Software” means software, including CockroachDB software, made available by Cockroach Labs to Company pursuant to Order(s) entered into hereunder.
“Subcontractor” means, with respect to a Party, a subcontractor, consultant, third-party service provider, or agent engaged by such Party in connection with its use or provision of Software or Services.
“Support Policy” means the customer and product support policies set forth at https://www.cockroachlabs.com/terms-and-conditions/cockroachdb-support-policy/.
“Usage Data” means tracking usage or operational data regarding Company’s querying of or use of the Software or Service or specific Service functionality (e.g., query logs, metadata or feature usage information), as applicable.