BY CREATING A COCKROACHCLOUD ACCOUNT, YOU (“YOU” OR “YOUR”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE COCKROACH LABS, INC. (“COCKROACH LABS,” “WE,” “US,” OR “OUR”) COCKROACHCLOUD TERMS AND CONDITIONS (THE “SERVICES AGREEMENT”). YOUR AND YOUR COMPANY’S (COLLECTIVELY, “COMPANY”) CONTINUED USE OF THE SERVICES (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE AGREEMENT, DO NOT USE COCKROACHCLOUD. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE AND/OR ENTER INTO THIS AGREEMENT AND BIND YOURSELF OR THE ENTITY YOU REPRESENT (AS APPLICABLE) TO THE TERMS OF THIS AGREEMENT.

We may amend this Services Agreement from time to time by posting an updated version to the Services or by notifying you. Each time you login to the Services, you will be prompted to accept the Services Agreement, and you agree to be bound by any updated Service Agreement which you agree to as part of that workflow. Use of the Services pursuant to an Order Form entered into with Cockroach Labs prior to March 9, 2021 is subject to the then-current terms and conditions at the time the Order Form was entered into, currently available here.

1. DEFINITIONS. Certain capitalized terms used herein are set forth below, other terms shall have the respective meanings set forth elsewhere in the CockroachCloud Terms or the applicable Order Form.

“Acceptable Use Policy” means, if you opt to utilize CockroachCloud on Amazon Web Services, the usage rules and restrictions set forth at https://aws.amazon.com/aup/, and if you opt to utilize CockroachCloud on Google Cloud Platform, the usage rules and restrictions set forth at https://cloud.google.com/terms/aup.

“Affiliate” 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.

“Aggregate Service Data” means aggregated or anonymized Usage Data and other data regarding the operation and use of the Services which does not identify you or your individual users of the Services and does not contain identifiable Company Data.

“Beta Features” means any Services or Service features delineated as “Beta” or “Alpha” or other label identifying such Service or feature as being made available on pre-production release or testing basis.

“Company Data” means data that you upload, manage and use within the 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, but excluding any such information that was (i) rightfully known the the recipient before receipt thereof, (ii) rightfully received by the recipient from a third party without restriction, (iii) is or becomes generally known to the public without violation of this Services Agreement, or (iv) is independently developed by the recipient without reliance on such information.

“Free Tier Customer” means any customer which does not currently pay Service Fees for use of the Services or hasn’t paid for use of the Services in the past thirty (30) days.

“Laws” means all laws, rules and regulations of the United States and of any other applicable legal authority.

“Paid Tier Customer” means any customer that currently pays Service Fees for use of the Services and has fully paid all amounts owed and due to Cockroach in respect of the Services.

“Release Support Policy” means the release support policies set forth at https://www.cockroachlabs.com/docs/releases/release-support-policy.html.

“Services” means the CockroachCloud database software as a service offering.

“Service Fee” means the fees applicable to your use of the Services as communicated to you through the Services or as otherwise explicitly agreed to in a binding legal instrument between the Parties. The current pricing for use of the Services is available at https://www.cockroachlabs.com/pricing/.

“Support Policy” means the customer and product support policies set forth at https://www.cockroachlabs.com/cloud-terms-and-conditions/cockroach-support-policy/.

“Uptime SLAs” means the uptime support level agreement for the Services set forth at https://www.cockroachlabs.com/cloud-terms-and-conditions/cockroachcloud-technical-service-level-agreement/.

“Usage Data” means tracking data regarding your use of the Service or specific Service functionality (e.g., tracking user engagement with a particular feature). For the avoidance of doubt, Usage Data does not include any Company Data.

2. SERVICES AND SUPPORT.

2.1 Use of the Services. You may use the Services for your internal business purposes solely during the Term and subject to the terms and conditions of this Services Agreement. You are, without exception, solely responsible for any and all activities through your Service account(s) and for properly configuring and securing your Services account and associated login credentials. We have no responsibility for unauthorized access to your account or Company Data.

2.2 Beta Services. You expressly acknowledge that Beta Services that are made available to you are still undergoing testing and may still have defects or other bugs which are not yet identified or which, even if identified, have not been communicated to you or corrected. We have no obligation to maintain or fix Beta Services or to ever release Beta Services as production Services or features.

2.3 Technical SLAs. We will provide the Services in accordance with the Uptime SLA. The Uptime SLA sets forth all commitments and/or guarantees of Cockroach, and all remedies available to you, with respect to the availability of the Services. For the avoidance of doubt, Cockroach Labs does not make any commitments or guarantees that the Service will be available at all times or during any downtime caused by outages to any public internet backbones, networks, or servers, any failures of equipment, systems, or local access services, or for scheduled or emergency maintenance.

2.4 Customer Support. We will provide you technical support for Supported Releases in accordance with the Support Policy, provided that if you are a Free Tier Customer, our technical support is not subject to any commitments and may be withdrawn, reduced, or otherwise restricted by us at any time without notice to you.

2.5 Security. We will implement and maintain appropriate security measures designed to protect your data from unauthorized access and use. You can learn more about our security practices and policies here: https://www.cockroachlabs.com/security.

2.6 Release Support Policy. You acknowledge our Release Support Policy and understand and agree that we will not provide technical support, maintenance, enhancements, error corrections, or any other support for releases that are past their End of Life (as defined in the Release Support Policy). We may publish guidelines or best practices regarding the recommended use and implementation of new major releases of CockroachDB (“Best Practices”). You are not required to follow such Best Practices, but you acknowledge and agree that there are material risks in not following those Best Practices and that if you do not follow those Best Practices it is at your own risk and that we will not be liable to you for any reasonably foreseeable harms, liabilities or other damages which result therefrom. We may add, discontinue, or modify any of the Services or Services functionality at any time at our sole discretion. We will notify you of any material discontinuations or modifications via email notice to you or via our website.

2.7 Restrictions. You will use the Services in compliance with all applicable Acceptable Use Policies, Laws and all Service or feature-specific rules that we may specify. You will not directly or indirectly (i) use the Services in manner that violates, or causes us to violate, any data privacy law, data export laws, or other laws related to the use, sharing, storage or processing of personal data, (ii) use the Services in a manner that violates any third party intellectual property or other proprietary rights, (iii) reverse engineer, disassemble, or use other means to attempt to discover any undisclosed source code of the Services or the underlying ideas, algorithms or trade secrets therein, or (iv) permit any third party to engage in an of the foregoing acts.

3. PAYMENT; TAXES.

3.1 Payment. We will bill you for your Service Fees and you will timely pay us the Service Fees through the payment methods we make available to you without any setoff or deduction. We may require prepayment of Service Fees or a deposit from you at our discretion. All Service Fees will be accrued and paid in US dollars and are nonrefundable.

3.2 Late Payment. Any amount 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), in addition to any costs of collection incurred by us. For payments that are late, without limiting Cockroach Labs’ other rights and remedies, Cockroach Labs may immediately suspend Company’s access to the Services until payment in full has been made.

3.3 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 will 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.

4. TERM AND TERMINATION.

4.1 Term. This Services Agreement shall commence on the date you became bound by this Services Agreement or otherwise began use of the Services and will continue until terminated as provided herein (the “Term”).

4.2 Suspension; Termination for Breach or Cause. We may suspend in whole or in part your use of the Services or access to your Services account, including any data housed therein, immediately if (i) you fail to timely pay us amounts owed for use of the Services, (ii) we have reason to suspect that your use of the Services (a) poses a risk to the Services, to us, or to our customers, (b) could violate this Services Agreement or applicable law, or (c) infringe or violate any third party right (including intellectual property right), or (iii) you have made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, liquidation, reorganization, dissolution, or similar proceeding. We may also terminate this Services Agreement immediately upon written notice to Company in connection with any breach of this Agreement. If Cockroach Labs terminates your use of the Services in whole or in part pursuant to this Section 4.2, all Service Fees for the remainder of the then-current Term, without discount or pro rata reduction in connection with any reduction in the Term due to such termination, will be due and payable within thirty (30) days.

4.3 Termination for Convenience. We may, in our sole discretion, terminate this Services Agreement for any or no reason upon no less than thirty (30) days’ prior notice to you. If you are a Free Tier Customer, Cockroach Labs may, in its sole discretion and without further notice, suspend or terminate your use of any or all Services at any time for any or no reason.

4.4 Survival. Upon termination of this Services Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except (a) all obligations accrued prior to the effective date of termination (including without limitation, all payments) shall survive, (b) Company shall cease using the Services, and (c) Sections 1, 3, 5, 6, 8, 9, 10 and 11, and this sentence, of this Services Agreement shall survive the termination this Services Agreement for any reason.

5. PROPRIETARY RIGHTS.

5.1 Cockroach Labs Ownership. Except for the rights, permissions, and licenses explicitly granted in this Services Agreement, all right, title and interests in and to the intellectual property and proprietary rights of whatever nature in the Services, including Aggregated Service Data, Service 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 any and all rights not expressly granted in this Services Agreement. Cockroach Labs, CockroachDB, and CockroachCloud are trademarks of Cockroach Labs, Inc., and shall not be used by Company without Cockroach Labs’ express authorization.

5.2 Feedback. You are not required to give us any request, suggestions, enhancement ideas, specifications, or other feedback regarding the Services (“Feedback”). If you do provide us Feedback, you grant us and our Affiliates a worldwide, perpetual, irrevocable, fully paid and royalty-free right to fully exploit, use and incorporate into our products, services or software any Feedback you provide in our sole discretion.

6. Data.

6.1 Company Data Nothing herein will be construed to confer to us ownership or rights to Company Data other than the express license grants specified herein. Company grants us a non-exclusive, worldwide license to use, modify and share Company Data to provide the Services to you or as directed by you. Company is solely responsible for ensuring all necessary consents and/or disclosures are made for the use and processing of Company Data within the Services, and for the proper configuration of Company Data for use in the Services and for maintaining the security of Company Data. Cockroach Labs may delete Company Data stored in excess of the Service limits delineated for your account upon no less than thirty (30) days prior notice to you.

6.2 Usage Data; Aggregate Service Data. We may track and analyze your Usage Data to provide, maintain, protect and improve the Services. Aggregate Service Data is the sole and exclusive property of Cockroach Labs. Our collection of personal information (excluding Company Data) from you and how we use it is described in more detail in our Privacy Policy.

6.3 Sensitive and Regulated Data.

6.3.1 GDPR. The parties agree to comply with the Cockroach Data Processing Addendum available at https://www.cockroachlabs.com/cloud-terms-and-conditions/data-processing-addendum with respect to Company Data which contains “Personal Data” from a European “Data Subject” that is subject to the European Union’s General Data Protection Regulation 2016/679 (“GDPR”).

6.3.2 CCPA. To the extent Company Data contains personal information subject to CCPA, the parties agree that Cockroach Labs is a “service provider” for purposes of the California Consumer Privacy Actof 2018, Cal. Civ. Code § 1798.100 et seq., as may be amended, including any rules or regulations implementing the foregoing of 2018, Cal. Civ. Code § 1798.100 et seq., as may be amended, including any rules or regulations implementing the foregoing (“CCPA”). We will only use, retain and disclose personal information you provide us in order to provide the Services to you and to perform our obligations under this Agreement. Cockroach Labs does not and will not, for the avoidance of doubt, sell that personal information. The terms “personal information,” “service provider,” and “sell” are as defined in Section 1798.140 of the CCPA. Cockroach Labs certifies that it understands the restrictions of this Section 6.3.2.

6.3.3 Restrictions. You agree to not provide Company Data that contains legally protected health information, payment cardholder information, or any other category of regulated information that isn’t expressly supported by the Services (“Restricted Data Types”). The parties may enter additional terms and conditions regarding the use of Restricted Data Types within the Services at their discretion. You will also ensure that Company Data does not include any unencrypted personally identifiable information or sensitive information.

7. WARRANTY AND DISCLAIMER. THE SERVICES ARE PROVIDED TO COMPANY “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND. COCKROACH LABS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. COCKROACH LABS AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICES WILL MEET COMPANY'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.

8. CONFIDENTIALITY

8.1 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 Services 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 Services Agreement.

8.2 Exclusions; Required Disclosures. Notwithstanding Section 8.1, neither Cockroach Labs, nor Company shall have an obligation to maintain the confidentiality of 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, the recipient 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.

9. INDEMNITY.

9.1 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 the Company Data or Company’s use of or access to the Services, except for claims that the Services infringes or misappropriates a third party’s intellectual property rights.

9.2 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 Services infringes or misappropriates such third party’s intellectual property rights. The foregoing obligation shall not apply to: (a) combinations or use of the 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 Services made by any unauthorized third party, or made by Cockroach Labs at your request, to the extent the alleged infringement relates to such modification, or (c) infringement or misappropriation of any intellectual property right in which Company has an interest. If the Services become or, in Cockroach Labs’ opinion, is likely to become the subject of an injunction, Cockroach Labs may, at its option, (i) procure for Company the right to continue using such Service as contemplated hereunder, (ii) modify the 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 Service and refund Service Fees actually paid for the applicable 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. Furthermore, the parties agree that the foregoing indemnification obligations of Cockroach Labs set forth in this section shall not extend to Company for liabilities arising while Company is a Free Tier Customer.

9.3 Indemnity Procedure. Each party’s indemnification obligations under this Section 9 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.

10. LIMITATION OF LIABILITY.

10.1 Exclusions. IN NO EVENT SHALL COCKROACH LABS 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.

10.2 Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS SERVICES AGREEMENT, THE AGGREGATE LIABILITY OF COCKROACH LABS FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS SERVICES AGREEMENT SHALL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT ACTUALLY PAID TO COCKROACH LABS BY COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE; OR (B) ONE-HUNDRED DOLLARS ($100.00).

11. MISCELLANEOUS.

11.1 Governing Law; Attorneys’ Fee; Severability; Notice. This Services 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 Services 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 Services Agreement must be in English and in writing. You may notify us by certified or registered mail, return receipt requested, sent to: 53 W 23rd Street, 8th Floor, New York, NY 10010, ATTN: Legal Notice. We may notify you by posting a notice on the Services website or to your Services account, or via email at the email address associated with your Services account.

11.2 Assignment. Neither party may assign this Services Agreement or its rights or obligations under this Services Agreement to any person or party, whether by operation of law or otherwise, without the other party’s prior written consent, except that this Services 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.

11.3 Subcontractor. Subject to any applicable restrictions set forth in this Agreement, Cockroach may use subcontractors in providing the Services, but is liable for their acts or omissions.

11.4 No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Services 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 Services Agreement may be brought by Company more than one (1) year after the cause of action has accrued.

11.5 Export and Trade Compliance. You 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. You represent and warrant that neither you, nor your employees or any party that owns or controls you, nor any third party that you enable to access the 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.

11.6 U.S. Government Restricted Rights. Elements of the Services are commercial computer software. If the 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 Services are developed fully at private expense. All other use is prohibited.

11.7 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 Services 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.

11.8 Publicity. During the Term of this Services Agreement, we may include your name and logo in customer lists and informational materials related to the Services. Company agrees to be a reference for Cockroach Labs and participate in a case study upon Cockroach’s request. Company agrees to participate in a press release regarding Company’s use of the Software, as mutually agreed upon. Neither party shall release its press release without first providing such press release to the other party for its review and approval. Cockroach may use Company’s name and logo in customer lists related to the Services.

11.9 Entire Agreement. This Services 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 cancelled. Any modifications or waivers of this Services Agreement must be in writing and signed by both parties hereto.