designated by Cloudera from time to time. These Terms are between you ("you" or "Developer") and
Cloudera, Inc. ("Cloudera," "we" or "us"). BY PARTICIPATING IN THE PROGRAM, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS. YOU ALSO AGREE THAT THESE TERMS ARE BETWEEN YOU AND CLOUDERA AND YOU MAY NOT ENTER INTO THESE TERMS ON BEHALF OF YOUR EMPLOYER, ANOTHER ENTITY OR ANOTHER INDIVIDUAL AND YOU MAY NOT ENTER INTO THESE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OF AGE. IF YOU (I) DO NOT AGREE WITH ANY PROVISION OF THESE TERMS, OR (II) DO NOT HAVE AUTHORITY FROM YOUR EMPLOYER OR ANY ENTITY WITH WHICH YOUR ARE AFFILIATED TO ENTER INTO THESE TERMS ON BEHALF OF YOURSELF, YOU MAY NOT PARTICIPATE IN THE PROGRAM. NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS TO THE CONTRARY, YOUR PARTICIPATION IN THE PROGRAM AND THE RIGHTS AND LICENSES GRANTED HEREIN ARE EXPRESSLY CONDITIONED UPON CLOUDERA’S REVIEW AND APPROVAL OF YOUR PROGRAM PARTICIPATION.
1. Application and Approval of Developer Participation. The Program is a nonexclusive program available to Cloudera-approved individual developers to allow them to explore and test the functionality of specified developer tools and resources, including certain Cloudera products (collectively “Cloudera Products”). You represent and warrant that you will not use the Products or permit others to deploy the Cloudera Products for (i) production purposes or internal business operations of any company or other entity or (ii) offering commercial products or services to any company or other entity (collectively “Commercial Purposes”). Nothing herein restricts Cloudera's ability to enroll other individuals, companies or other entities in the Program. In order to participate in the Program, you must register for an account and be approved by Cloudera. You may not participate in the Program unless you agree to these Terms. Thereafter, during the Term, you will have access to Cloudera's Products and other Program information. In addition to our Program policies, privacy policies and other documents and policies available on the Site (collectively, "Policies"), these Terms will govern your participation in the Program.
(a) License and Delivery. Upon approval of your Program participation by Cloudera and subject to the terms and conditions of this Agreement and payment of the applicable program fees according to 3(c) below, Cloudera grants to Developer a 12-month nonexclusive, nontransferable, revocable and limited right to: (i) download the Cloudera Products, on up to 10 servers; and (ii) use the Cloudera Product solely in order to demonstrate and test the Cloudera Product’s functionality, alone or together with other applications, provided that any such use of Cloudera Product shall not be for Commercial Purposes. Cloudera grants and developer receives no right to sublicense to any other individual or entity or right to use the Cloudera Products for Commercial Purposes. Cloudera Products may include offerings provided by Cloudera as a hosted, cloud-based service, accessible to Developer through a web browser in which case Developer may be required to accept a separate agreement for on-line services and/or additional terms related to Cloudera’s privacy and/or data security policies for such on-line services.
(b) Restrictions. Unless expressly otherwise set forth in this Agreement, Developer will not: (i) modify,
translate or create derivative works of the Cloudera Product; (ii) disassemble, decompile, reverse engineer or reverse assemble any portion of the Cloudera Product or attempt to discover any source code or underlying ideas or algorithms of the Cloudera Product; (iii) sell, assign, sublicense, rent, lease, loan, provide, disclose, distribute or otherwise transfer all or any portion of the Cloudera Product; (iv) make, have made, reproduce or copy the Cloudera Product; (v) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Cloudera Product; (vi) use the Cloudera Product for Commercial Purposes; (vii) publicly display, or otherwise make publicly available any portion of the
Cloudera Product; or (viii) cause or permit any other party to do any of the foregoing.
(c) Payment. Payment of the participation fees for the Program (the “Program Fees”) is due in full at time
of initial enrolment in the Program. All payment must be made via the process identified at the Site.
Program Fees are non-refundable except as expressly provided in Section 7. Developer’s participation in
the Program is contingent upon Cloudera’s receipt of the applicable Program Fees.
4. Modifications to These Terms or Policies. Cloudera reserves the right to modify these Terms (or any
portion thereof), including, without limitation, any Developer benefits described in these Terms or any
related Policies, from time to time without notice. Cloudera will indicate at the top of these Terms or Policy
the date these Terms or the Policy, as applicable, were last revised. Please review these Terms and the
Policies from time to time so that you will be apprised of any changes. Your continued participation in the
Program after such Terms or Policies have been updated by Cloudera constitutes your agreement to such changes. In the event that you request prior notice of any modifications under this section, Cloudera will use commercially reasonable efforts to provide notice to an email address provided by you for this
purpose. You will have 90 days from the time Cloudera sends notice prior to any changes taking effect.
5. Proprietary Rights. The Cloudera Products, Site, Content (defined in this Section) and any Confidential Information (defined in Section 7) of Cloudera (collectively, the "Cloudera Materials") includes valuable patent, copyright, trademark, trade secret or other intellectual property rights (collectively, "Intellectual Property Rights") of Cloudera. Cloudera or its suppliers or licensors own all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to all Cloudera Materials made available to Developer in connection with the Program. For clarification, it is not the intention of this section to grant or claim ownership to the other Party's Intellectual Property or Confidential Information. As used in these Terms, "Content" means any graphics, text, images, documentation, information, manuals, software, code, applications, content or other information available on or through the Site or Partner Portal.
6. Confidential Information. During the Term, Cloudera may disclose certain Confidential Information
(defined in this Section) to the Developer. In such event, unless otherwise specifically authorized pursuant to a separate written agreement between Cloudera and Developer, the Developer shall (i) use such Confidential Information solely for the purposes for which it is provided by Cloudera; (ii) not disclose such Confidential Information to any third party; and (iii) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own confidential information of a similar nature. The obligations above shall not apply to any use or disclosure that is required by applicable law, legal process or governmental authority or that is made with the consent of the Cloudera. For purposes of these Terms, "Confidential Information" means any information that is proprietary or
confidential or that Cloudera is obligated to keep confidential (e.g., pursuant to a contractual or other
obligation owing to a third party). Confidential Information may be of a technical, business or other nature
(including, but not limited to, information that relates to Cloudera's technology, software, research,
development, products, services, pricing of products and services, customers, employees, contractors,
marketing plans, finances, contracts, legal affairs or business affairs). Without limiting the foregoing, any
code, application, data or other information relating to the design, architecture, specifications, features,
functions, performance, operation and other characteristics of the Cloudera Products (including, without limitation, the Cloudera Enterprise or any other proprietary software of Cloudera) will be presumed (e.g., without marking or other specific identification) to be Confidential Information of Cloudera. However, Confidential Information does not include any information that: (a) was known to the Developer before receiving the same from Cloudera in connection with these Terms; (b) is independently developed by the Developer without access to or use of Cloudera’s Confidential Information; (c) is acquired by the Developer from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Developer. In addition, any suggestions, comments or other feedback provided by Developer to Cloudera with respect to the Cloudera Products and/or Cloudera (collectively, “Feedback”) will constitute Confidential Information of Cloudera. Further, Cloudera will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
7. Term and Termination. The term ("Term") of these Terms commences upon the later to occur of the date Developer's payment is received through the Site or Cloudera’s acceptance of Developer’s Program participation, and continues for a period of one year thereafter. Either party may terminate these Terms as follows: (i) for any reason at any time by providing the other party with 30 days' advance written notice of its intent to terminate these Terms; or (ii) immediately at any time upon notice in writing to the other party if the other party is in breach of any material obligation under these Terms. Following the expiration or termination of these Terms, (a) all licenses and rights hereunder will immediately terminate; (b) Developer's participation in the Program will immediately terminate; (c) Sections 4 through 13 shall survive. In the event that Cloudera terminates the Terms without cause under Section 9(i) above, Cloudera will refund the pro-rated portion of the Fees for any remaining months of the Term. The expiration or termination of these Terms shall not affect any preexisting or separately executed
agreements between the parties (including any reseller or distribution agreements in effect between the parties).
8. Disclaimer of Warranties. THE PROGRAM AND ALL CLOUDERA PRODUCTS AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS,
WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDERA, ITS LICENSORS AND SUPPLIERS MAKE NO REPRESENTATION, GUARANTEE OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE PROGRAM, CLOUDERA PRODUCTS, CLOUDERA MATERIALS OR ANY ADVERTISING AND OTHER SERVICES. CLOUDERA AND ITS SUPPLIERS DO NOT WARRANT THAT ANY ITEM SUPPLIED HEREUNDER WILL BE FREE FROM BUGS, ERRORS OR OMISSIONS. CLOUDERA AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PROGRAM, AND ANY CLOUDERA PRODUCTS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CLOUDERA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. PARTNER ACKNOWLEDGES AND AGREES THAT PARTNER HAS RELIED ON NO WARRANTIES.
9. Indemnification. Developer agrees to indemnify, defend and hold harmless Cloudera, its agents, affiliates, subsidiaries, directors, officers, employees and applicable third parties from and against any third party claims, liabilities, losses and expenses (including awards of damages, amounts of settlements and reasonable legal fees) arising out of or relating to: (i) Developer's acts or omissions in violation of these Terms or any Policies; (ii) Developer's violation of any applicable laws, regulations or orders; and/or (iii) Developer's breach of any provision of these Terms.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (1) FRAUD OR WILLFUL MISCONDUCT OR (2) THE OBLIGATIONS SET FORTH IN SECTIONS 6 AND 9, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE UNDER THESE TERMS TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, WHETHER RELATING TO THE PROGRAM, THIS AGREEMENT, THE CLOUDERA MATERIALS OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (II) CLOUDERA’S TOTAL AGGREGATE LIABILITY TO DEVELOPER UNDER THESE TERMS FOR ANY AND ALL CLAIMS EXCEED U.S. $899.00. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Each party acknowledges that the other party has entered into these Terms relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
11. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond such party's reasonable control (including, without limitation, any act or failure to act by the other party).
12. Entire Agreement. These Terms, together with any Policies, constitute the entire agreement between
the parties with respect to the Program. Nothing in these Terms supersedes, modifies or otherwise affects
any other valid agreement between the parties, including, without limitation, any agreement pertaining to
any resale or distribution of the Cloudera Enterprise products.
13. Miscellaneous. The parties agree that Cloudera may designate and use third party consultants,
contractors, licensors and suppliers in connection with the Program. These Terms will be interpreted,
construed and enforced in all respects in accordance with the laws of the State of California, U.S.A. without reference to its choice of law principles. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or
claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to
these Terms, including, but not limited to, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group as is mutually agreeable to both parties) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who will be (i) fluent in written and spoken English and (ii) skilled and experienced in product distribution. The place of such arbitration will be in Santa Clara County, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The arbiter will issue a written opinion setting forth the arbiter's decision and the reasons therefor within 30 days after the arbitration proceeding is concluded. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its Intellectual Property Rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts of Santa Clara County, California, U.S.A. Each party hereto is duly authorized to enter into these Terms and perform its obligations hereunder. All notices under these Terms will be in writing and (i) if sent to Developer, delivered to the address identified in the application; and (ii) if sent to Cloudera, sent via confirmed email to email@example.com. The waiver of any breach or default of these Terms will not constitute a waiver of any subsequent breach or default. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of these Terms will remain in full force and effect. Developer may not assign or otherwise transfer any of its rights hereunder, in whole or in part, without Cloudera's prior written consent. The relationship(s) between Cloudera and Developer is one of independent contractors and not one of a legal partnership, joint venture or agency relationship. This Agreement will not be binding until signed by the Developer, where such signature may be provided by an on-line click-acceptance of these Terms.
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