Terms and Conditions ( CockroachDB Dedicated)

THE FOLLOWING TERMS AND CONDITIONS FOR Cockroach Labs’ COCKROACHCLOUD (The " CockroachDB Dedicated TERMS") SHALL BE DEEMED INCORPORATED BY REFERENCE INTO EACH ORDER FORM (AS DEFINED BELOW) (TOGETHER, THE “AGREEMENT”), BY AND BETWEEN COCKROACH LABS, INC., A DELAWARE CORPORATION (“COCKROACH Labs”) AND THE CUSTOMER IDENTIFIED THEREIN (“company”).

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

"Beta Services" means, if Beta Services is specified on an Order Form, (a) access to the Software in the pre-production, testing, or trial environment that is managed by Cockroach Labs solely for the purpose of evaluating and improving the Software and Services, and (b) Cockroach Labs’ provision of technical support, as described in Attachment A hereto. Company’s access to, and use of, Beta Services shall be subject to and governed by Sections 1, 2.2, 4.4, 5, 6, 7, 8, 10, and 11 of these CockroachDB Dedicated Terms.

"Order Form" means an Order Form for CockroachDB Dedicated that has been signed and executed by both Company and Cockroach Labs.

"Services" means (a) access to the Software in a hosted environment that is managed by Cockroach Labs, (b) Cockroach Labs’ provision of technical support, as described in Attachment A hereto, and (c) any other services that Cockroach Labs may offer to licensees of the Software as described on the applicable Order Form.

"Software" means the CockroachDB software and related documentation as specified on the applicable Order Form to which access is provided via the Services, and includes any change, improvement, enhancement, extension, upgrade or other new version or release thereof that is developed or otherwise made generally available by Cockroach Labs in connection with the Services to Company. Use of the Software is governed by the CockroachDB Community License Agreement located at https://www.cockroachlabs.com/cockroachdb-community-license/ (“Community License”).

"Subscription Fee" means the then-current subscription fees as set forth on the applicable Order Form(s), and any other fees set forth on the Cockroach Labs website (https://www.cockroachlabs.com/pricing/).

"Term" means the Initial Term or a Renewal Term, as applicable.

2. LICENSES AND SERVICES.

2.1. License. Subject to the terms and conditions of this Agreement, Cockroach Labs grants Company a limited, nonexclusive, revocable, non-sublicensable, nontransferable license during the Term to access and use the Services, solely for Company’s internal business purposes, as set forth in the applicable Order Form. All rights not expressly granted to Company are reserved by Cockroach Labs. Cockroach Labs reserves the right to modify the Software or Services at any time, provided that Cockroach Labs will not materially reduce the functionality of the Software or Services. Company agrees that Company’s purchase of Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written comments made by Cockroach Labs regarding future functionality or features.

2.2. Beta Services. If Beta Services is specified on an Order Form, subject to the terms and conditions of this Agreement, Cockroach Labs grants Company a limited, nonexclusive, revocable, non-sublicensable, nontransferable license during the Term to access and use the Beta Services, solely for the purpose of Company’s internal evaluation of the Software and Services and to assist Cockroach Labs in improving the Software and Services. Cockroach Labs has no obligation to release updates or a production version of any Beta Services.

3. PAYMENT; TAXES.

3.1 Payment. Cockroach Labs shall invoice Company for the Subscription Fees two (2) times per calendar month, with invoicing to begin on the first calendar day of the month of the "Order Effective Date" (as indicated in the applicable Order Form). Except as specified herein or in an Order Form, the invoiced amounts are due and payable within thirty (30) days of the invoice date. Payment shall be made without any right of set-off or deduction. All payments made pursuant to this Agreement shall be made in the quoted currency and are nonrefundable. In the event that Cockroach Labs terminates this Agreement pursuant to Section 4.2 or 4.3(a) hereunder, Company is responsible for full payment of the Subscription Fees for the remainder of the then-current Term (as set forth in the applicable Order Form).

3.2. Late Payment. Any amount not paid when required to be paid under this Agreement shall 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). For payments that are more than ten (10) days late, without limiting Cockroach Labs’ other rights and remedies, Cockroach Labs may suspend Company’s access to the Services until payment in full has been made.

3.3. Taxes. All 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, other than 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 Agreement shall commence on the effective date specified on the Order Form and continue for the period specified on an Order Form ("Initial Term") unless terminated earlier as set forth below. Thereafter, this Agreement shall renew for successive periods of one (1) year or such other period specified in an Order Form, each a (“Renewal Term”), unless either party gives at least sixty (60) days’ notice of non-renewal prior to the expiration of the applicable Term.

4.2. Termination for Breach. Either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receipt of notice of material breach.

4.3. Termination for Cause. Cockroach Labs may terminate this Agreement upon written notice to Company (a) in the event of Company’s unauthorized use of the Services or Software (including breach of the Community License), (b) if Company fails to make timely payment to Cockroach Labs, or (c) if Company violates Section 8.

4.4. Beta Services. Cockroach Labs may suspend or terminate Company’s access to, or use of, any Beta Services at any time and for any reason.

4.5. Survival. Sections 1, 3, 5, 6, 8, 9, 10 and 11 of this Agreement shall survive the termination of this Agreement for any reason. On termination or expiration of this Agreement, Cockroach Labs will permanently delete all Company Data in its possession, except that one (1) archival copy may be retained for compliance purposes. Any Company Data so retained that is also Confidential Information shall remain subject to Section 8 for so long as it is retained.

5. PROPRIETARY RIGHTS.

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

5.2. Restrictions. Company shall not directly or indirectly (a) include in Company Data any unencrypted personally identifiable information or sensitive information; (b) encumber, lease, rent, loan, sublicense, transfer or distribute the Software or any Services (including Beta Services); (c) use the Software or Services (including Beta Services), or allow the transfer, transmission, export or re-export of all or any part of the Software or Services (including Beta Services), in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; (d) use the Software or Services (including Beta Services) for the benefit of any third party; or (e) permit any third party to engage in any of the foregoing proscribed acts.

6. COMPANY DATA.

6.1. License. Company hereby grants to Cockroach Labs a non-exclusive, worldwide license to display, modify, distribute, perform and reproduce any data provided by Company to Cockroach Labs as part of the Services ("Company Data") in order to (a) provide and optimize the Software or Services to Company, and (b) collect the Company’s name and telemetry data from Company to improve the Services.

6.2. Obligations. Company’s use of Company Data shall comply with this Agreement and any applicable laws and regulations. Company is solely responsible for Company Data. Except as otherwise specified in this Agreement or an applicable Order Form, Company is responsible for the proper configuration of Company Data for use in the Services and for maintaining the security of Company Data. If you include payment cardholder information in your use of the Services, Cockroach Labs will maintain all applicable Payment Card Industry Data Security Standard requirements.

6.3. Aggregate Information. "Aggregate Information" means aggregated and anonymous data collected or derived from the use of the Software and Services (including Beta Services), provided that none of the foregoing specifically reveals any personally-identifying information, identifies Company or contains any Company Data. Cockroach Labs may collect and use Aggregate Information to gauge usage levels and performance, improve the Software and Services, ensure the Software’s proper operation and promote Cockroach Labs’s Software and Services. As between the parties, Aggregate Information and any materials that it is used to produce are the sole and exclusive property of Cockroach Labs.

6.4. Usage Data. Cockroach Labs may use third party services and technology to assign unique identifiers to individual users and collect and analyze information regarding individual user activity within the Software, Services and Beta Services (e.g. tracking clicks within the user console) ("Usage Data"). Cockroach Labs will only use Usage Data to analyze, develop, and improve the Services and Software. Cockroach Labs will not use Usage Data to identify individuals using their unique identifiers.

6.5. Data Processing. To the extent that, in connection with the Software or Services, Company provides any Company Data that contains "Personal Data" from a European “Data Subject” that is subject to the European Union’s General Data Protection Regulation 2016/679 (“GDPR”), Cockroach Labs’ Data Processing Addendum (“DPA”), attached hereto as Attachment B, shall apply. Any terms not defined in this Section 6 shall have the meanings assigned to them in the DPA.

6.6. California Consumer Privacy Act. The parties acknowledge and agree that Cockroach Labs is a service provider for the purposes of the California Consumer Privacy Act ("CCPA") and is receiving personal information from Company pursuant to the Agreement for a business purpose. Cockroach Labs shall not sell any such personal information. Cockroach Labs shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA, and Cockroach Labs will be considered a “service provider” pursuant to Section 1798.140 of the CCPA. Cockroach Labs certifies that it understands the restrictions of this Section 6.6.

7. WARRANTY AND DISCLAIMER. EXCEPT AS SET FORTH IN THE COMMUNITY LICENSE, THE SOFTWARE AND SERVICES (INCLUDING BETA 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 SOFTWARE OR SERVICES (INCLUDING BETA 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 information and know-how transmitted by the other party to it during the Term, and for a period of three (3) years beyond the Term, that is clearly designated as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought reasonably to be treated as proprietary and/or confidential, and will make no use of such information and know-how except to further the purposes set forth in this 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 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. 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 Company’s use of or access to the Software or Services, except for claims that the Software 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 Software infringes or misappropriates such third party’s intellectual property rights. The foregoing obligation shall not apply to: (a) modifications to the Software made by any party other than Cockroach Labs or its agents or made by Cockroach Labs at Company’s request, if the alleged infringement relates to such modification, (b) combinations or use of the Software with any products, processes or materials not provided by Cockroach Labs where the alleged infringement relates to such combination or use, or (c) infringement or misappropriation of any intellectual property right in which Company has an interest. If the Software becomes 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 Software as contemplated hereunder, (ii) modify the Software to make it non-infringing (without substantially compromising its functionality), or, if (i) and (ii) are not reasonably practicable, then (iii) terminate Company’s license to the Software and refund the Subscription Fees actually paid for such infringing technology with a prorated deduction to account for Company’s use thereof. The foregoing states the entire liability of Cockroach Labs with respect to infringement of intellectual property rights.

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 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.

10.2. Aggregate Liability. IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAYABLE TO COCKROACH LABS (IN THE CASE OF COMPANY) OR ACTUALLY PAID TO COCKROACH LABS BY COMPANY (IN THE CASE OF COCKROACH LABS) DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CAUSE OF ACTION AROSE.

11. MISCELLANEOUS.

11.1. Governing Law; Attorneys’ Fee; 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. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested or when receipt is electronically confirmed, if transmitted by facsimile or e-mail. Notices to Cockroach Labs must be sent to: 125 W 25th Street, 11th Floor, New York, NY 10001, ATTN: Legal Notice or legal@cockroachlabs.com. Notices to Company will be given to the contact information submitted by Company in its online account with Cockroach Labs.

11.2. Assignment. Company may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Cockroach Labs’ prior consent (at Cockroach Labs’ sole discretion).

11.3. 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.

11.4. Compliance with Laws. Each party will comply with all applicable laws, rules, and regulations, including those relating to export control.

11.5. U.S. Government Restricted Rights. If the Services are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), 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, will be subject in all respects to the license rights and restrictions provided in the Community License and this Agreement.

11.6. 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, or any causes beyond the reasonable control of that party.

11.7. Endorsement. During the Term of this Agreement, Company agrees to be a reference for Cockroach Labs and participate in a CockroachDB case study, and participate in a press release regarding Company’s subscription to 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, which approval shall not be unreasonably withheld or delayed.

11.8. Entire Agreement. This Agreement together with the applicable Order Form and 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 Agreement must be in writing and signed by both parties hereto.

Attachment A

CockroachDB Dedicated Support and Service Level Agreement

Subject to the terms and conditions of the applicable Order Form and the CockroachDB Dedicated Terms (together, the “Agreement”), this CockroachDB Dedicated Support and Service Level Agreement (the “SLA”)  sets forth the technical support services that are included with the subscription to CockroachDB Dedicated.  Capitalized terms not defined in this SLA shall have the meaning set forth in the Agreement. In the event of a conflict between the terms of this SLA and the terms of the Agreement, the terms and conditions of this SLA shall apply only to the extent of such conflict.

1. DEFINITIONS.

"Authorized Contact" has the meaning assigned in Section 3.4(e) of this SLA.

"Downtime" means downtime for the CockroachDB Dedicated cluster if the Probe is not successful in accordance with the definition herein. The internal monitoring system will establish a connection to the cluster. There will be one Probe every five (5) seconds (i.e., twelve (12) Probes per minute), and each failed Probe contributes to five (5) seconds of Downtime. All requests made to nodes that are not part of a Highly-Available CockroachDB Dedicated cluster will be excluded from the Downtime calculation.

"Error" means an error in the Software, which significantly degrades use of the Software as compared to the published and functional performance documentation for the Software.

"Error Rate" means the total number of failed Probes divided by the total number of Probes during a specific period, and is calculated as:

"Monthly Uptime Percentage" means the total number of seconds in a month, minus the number of seconds of Downtime in such month, divided by the total number of seconds in a month, and is calculated as:

If a CockroachCloud cluster is provisioned and running for only part of a month, such cluster is deemed to be 100% available during the portion of the month in which it was not provisioned and running. As used herein, "month" refers to a calendar month.

"Probe" means a statement that is similar to the SHOW DATABASES statement. A probe is considered successful if it returns the expected results with a successful status within three seconds.

"Highly-Available CockroachDB Dedicated Cluster" means a CockroachDB Dedicated cluster with three or more nodes (≥3) provisioned across three or more availability zones.

"Service Credit" means the percentage of applicable monthly Subscription Fees that are credited back to an eligible account if Company’s claim is approved, as set forth below.

"Service Hours" means twenty four (24) hours a day, seven (7) days a week, fifty-two (52) weeks per year.

"Support Services" means the technical support services described in this SLA and provided with the Services (or Beta Services) as specified in the applicable Order Form.

"Target Response Time" shall be measured by the elapsed time between (i) Cockroach Labs’ receipt of Company’s reported Error and (ii) the time when Cockroach Labs initially communicates with Company about the reported Error (such initial communication, the “Response”).

2. SERVICE LEVEL COMMITMENT.

Cockroach Labs shall use commercially reasonable efforts to maximize the availability of the Services (including Beta Services) as provided hereunder. If Cockroach Labs does not achieve and maintain the Monthly Uptime Percentages set forth in the table below, Company may be eligible to receive a Service Credit.

2.1. Eligibility.  To be eligible for a Service Credit, Company must:

(a) Purchase and operate a Highly-Available CockroachDB Dedicated Cluster of at least three (≥3) nodes, as specified in an applicable Order Form.

(b) Log a support ticket with Cockroach Labs within 24 hours of first becoming aware of an event that impacts service availability.

(c) Submit the claim and all required information by the end of the month immediately following the month in which the Downtime occurred.

(d) Include all information necessary for Cockroach Labs to validate the claim, including (i) a description of the events resulting in Downtime (including documentation of Errors to validate Company claimed outage, with any confidential or sensitive information redacted); (ii) information regarding the time and duration of the Downtime; (iii) the number and location of affected users (if applicable); and (iv) description of attempt(s) to resolve the Downtime at the time of occurrence.

(e) Reasonably assist Cockroach Labs in investigating the cause of the Downtime and processing the claim.

(f) Comply with the terms of the Agreement, including any applicable Cockroach Labs documentation and advice from Cockroach Labs’ support team.

2.2. Processing. Cockroach Labs will evaluate and process Company’s Service Credit requests and determine whether a Service Credit is owed within 45 days of receipt. If Cockroach Labs determines that Company has satisfied the Section 2.1 obligations above and that none of the Section 2.3 exclusions apply to Company’s claim, Cockroach Labs will grant Company a Service Credit. Any Service Credit will be applied to a future invoice or payment for the CockroachDB Dedicated cluster that experienced the Downtime. Service Credits will not be applied to fees for any other CockroachDB Dedicated cluster. Service Credits are Company’s sole and exclusive remedy under this SLA.

2.3. Service Credit Exclusions. Downtime does not include, and Company will not be eligible for a Service Credit for, any performance or availability Error resulting from:

(a) misuse, negligence, misapplication, or willful acts of Company or any third party;

(b) failure to follow appropriate security practices (including but not limited to unauthorized access to Cockroach Labs’ network through use of Company’s password or equipment).

(c) failure to follow the recommended topology patterns for multi-region deployments and performance best practices, as described in Cockroach Labs’ CockroachDB Dedicated documentation, as provided and posted at https://www.cockroachlabs.com/docs/cockroachcloud/.

(d) insufficient compute or storage capacity for Company’s database workload.

(e) hardware, software or other technology provided by (i) Company; and/or (ii) a third-party source outside of Cockroach Labs’ direct control

3. SUPPORT SERVICES.

Cockroach Labs shall use commercially reasonable efforts to provide support for the Services (including Beta Services) as provided hereunder. Cockroach Labs offers unlimited ticket-based support for all CockroachDB Dedicated customers. As long as Company is current in payment of the fees listed in the applicable Order Form, Company will receive Support as specified for the level of support specified in the applicable Order Form.

3.1. Support Center.  Cockroach Labs shall provide Support Services through its online support portal available at support.cockroachlabs.com ("Support Center") in English. Company may access the Support Center and submit support requests twenty-four (24) hours a day, seven (7) days per week (the “Service Hours”). Cockroach Labs will primarily communicate with Company through the Support Center and/or as otherwise specified in the table below.

3.2. Response Times. Cockroach Labs shall provide an initial response to a request made to its Support Center within one (1) business day. Company acknowledges and agrees that full resolution of Company’s reported Error is not guaranteed.

3.3. Support Services Exclusions.  Notwithstanding anything to the contrary in this SLA or the Agreement, Cockroach Labs is not obligated to provide support for reported Errors arising from the:

(a) installation, modification, customization, alteration or addition or attempted installation, modification, customization, alteration or addition of the Software undertaken by any party other than Cockroach Labs or an authorized designee of Cockroach Labs;

(b) misuse, negligence, misapplication, or willful acts of Company or any third party;

(c) any combination of the Software with any computer hardware or software not provided or approved in writing by Cockroach Labs;

(d) use of the Software other than in accordance with its documentation or applicable license; or

(e) use of a version of the Software other than the current release or the immediately previous release.

3.4. Company Responsibilities.  Cockroach Labs’ provision of Support Services is subject to the following:

(a) Company shall be responsible for providing sufficient information and data to allow Cockroach Labs to readily reproduce all reported Errors.

(b) Company shall provide Cockroach Labs with necessary access to the Software, personnel and equipment during Service Hours. This access includes the ability to remotely access the Software, subject to Company’s security procedures.

(c) Company shall document and promptly report all detected Errors to Cockroach Labs. At Cockroach Labs’ direction, Company shall take all steps necessary to carry out procedures for the rectification of Errors within a reasonable time after such procedures have been received from Cockroach Labs.

(d) Company shall properly train Company’s personnel in the use and application of the Software.

(e) Company shall appoint a reasonable number of trained individuals to serve as primary contacts between Company and Cockroach Labs (each an "Authorized Contact"). All of Company communications regarding the Support Services shall be initialized through the Authorized Contacts.

4. MODIFICATIONS.

This SLA may be updated from time to time at Cockroach Labs’ sole discretion, provided that any such updates will not materially reduce the level of the Support Services during the period for which Company has purchased Support Services.

Attachment B

CockroachDB Dedicated Data Processing Addendum

Subject to the terms and conditions of the applicable Order Form and the CockroachDB Dedicated Terms (together, the “Agreement”), this CockroachDB Dedicated Data Processing Addendum (the “DPA”) sets forth Cockroach Labs’ data processing obligations with respect to any Company Data that contains “Personal Data” from a European “Data Subject” that is subject to the GDPR (the “Company Personal Data”).  Capitalized terms defined in the GDPR shall have the meaning set forth by the GDPR.

1. Purpose for Processing. As a "Processor," Cockroach Labs will process the Company Personal Data only on behalf of Company and in compliance with its instructions and the terms of the Agreement. If Cockroach Labs cannot provide such compliance for whatever reasons, Cockroach Labs will promptly inform Company of Cockroach Labs’ inability to comply, in which case Company is entitled to suspend the transfer of data and/or terminate the contract.

2. Subprocessors. Company agrees that Cockroach Labs may retain its affiliates and/or third parties to further process Company Personal Data to provide the Software and Services (the "Subprocessors"), provided that (a) Cockroach Labs has informed Company and obtained Company’s prior written consent, (b) such Subprocessors shall be subject to binding data protection and confidentiality obligations at least as protective as the provisions in the Agreement and this DPA, and (c) Cockroach Labs shall be liable for the performance of Subprocessor obligations to the extent required by such data protection laws. If Company instructs Cockroach Labs to transfer Company Personal Data to a Subprocessor outside of the European Union, Company hereby authorizes Cockroach Labs to apply the standard contractual clauses (as described in the European Commission’s decision (C(2010)593) of February 5, 2010) with that Subprocessor.

3. Changes. Cockroach Labs no reason to believe that the data protection law applicable to Cockroach Labs prevents Cockroach Labs from fulfilling the instructions received from Company and the obligations under the Agreement. In the event of a change in this data protection law, Cockroach Labs will promptly notify Company of the change as soon as Cockroach Labs is aware of such change, in which case Company is entitled to suspend the transfer of data and/or terminate the contract.

4. Security Measures. Cockroach Labs has implemented appropriate technical and organisational security measures for processing Company Personal Data, as set forth in the Cockroach Labs documentation available at https://www.cockroachlabs.com/security/, and to ensure a level of security appropriate to the risks associated with processing Company Personal Data.

5. Notifications. Cockroach Labs will promptly notify Company about:

(a) any legally binding request for disclosure of Company Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

(b) any accidental or unauthorized access, and

(c) any request received directly from the Data Subjects without responding to that request, unless it has been otherwise authorized to do so.

6. Cockroach Labs agrees to deal promptly and properly with all inquiries from Company relating to its processing of Company Personal Data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of transferred Company Personal Data.

7. Audit. Upon Company’s reasonable request and advance notice, and subject to the confidentiality obligations of the Agreement, Cockroach Labs will make information relating to Cockroach Labs’ compliance with the processing obligations of this DPA available to Company or an independent third-party auditor, which shall be bound by a duty of confidentiality of the profession and selected by the Company, where applicable, in agreement with applicable supervisory authority. In the event that audit results are insufficient to demonstrate Cockroach Labs’ compliance with the processing obligations of this DPA, (a) Company may request an on-site audit, solely to the extent required under applicable law, of Cockroach Labs’ processing of Company Personal Data; (b) Cockroach Labs and Company shall mutually agree upon the scope, timing, and duration of the on-site audit; and (c) Company will reimburse Cockroach Labs for the reasonable costs associated with any on-site audit. If non-compliance is discovered as a result of an audit, Company will promptly notify Cockroach Labs, and Cockroach Labs will use commercially reasonable efforts to address confirmed non-compliance.

8. Data Subject Requests. To the extent legally permitted, Cockroach Labs shall promptly notify Company upon receipt of Data Subject’s request to exercise Data Subject’s rights in relation to Company Personal Data under applicable data protection laws (each, a "Data Subject Request"). Cockroach Labs will assist Company in fulfilling Company’s obligation to respond to Data Subject Requests, solely to the extent necessary due to the nature of the processing activities and subject to appropriate technical and organizational measures. Company shall be responsible for any costs and additional fees arising from Cockroach Labs’ assistance in responding to Data Subject Requests. Cockroach Labs will make available to the Data Subject, upon reasonable request, a copy of the DPA, or any existing agreement for subprocessing, unless the such agreements contain commercial information, in which case Cockroach Labs may remove such commercial information.