Last Modified: October 16, 2015
These Cloudera, Inc. Partner Program Terms and Conditions ("Terms") apply to your participation in the Cloudera Partner Program ("Program"), described more fully at the Cloudera website www.cloudera.com (the "Site"). These Terms are between you ("you" or "Member") 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. IF YOU (I) DO NOT AGREE WITH ANY PROVISION OF THESE TERMS, OR (II) DO NOT HAVE LEGAL AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF YOUR EMPLOYER OR ORGANIZATION, YOU MAY NOT PARTICIPATE IN THE PROGRAM.
1. Application and Approval of Member Participation. The Program is a nonexclusive program available to Cloudera-approved partners. If you are entering into these Terms on behalf of a legal entity, you represent and warrant that you have the requisite legal authority to legally bind such entity to the terms and conditions of these Terms. Nothing herein restricts Cloudera's ability to enroll other companies or entities in the Program. In order to participate in the Program, you must register for an account and submit your Program application ("Application") via the Site. You agree not to provide any untruthful, inaccurate or fraudulent information in your Application. We may accept or reject your Application in our discretion for any or no reason. If your Application is approved, you may not participate in the Program unless you agree to these Terms. Thereafter, as a Program participant, you will be entitled to register for access to the partner portal ("Partner Portal"), where you will have access to Cloudera's partner tools and other Program information. In addition to our Program policies, privacy policies and other documents and policies available on the Site and/or Partner Portal (collectively, "Policies"), these Terms will govern your participation in the Program.
3. Participation Benefits. As a participant in the Program, you are eligible to promote Cloudera's products identified on the Partner Portal and participate in training and other offerings by Cloudera with respect to the marketing and promotion of Cloudera products and services (collectively, "Products"), subject in each case to the terms and conditions of these Terms and any Policies. Cloudera hereby grants to you a limited, nonexclusive license to (i) access and use the tools and other information available on the Partner Portal as necessary to promote and market the Products; (ii) market, promote and advertise the Products and Cloudera download website on your website in accordance with these Terms and any applicable Policies; and (iii) distribute any promotional materials as may be made available from Cloudera from time to time to current and prospective customers of the Products in accordance with these Terms and any additional instructions as may be provided by Cloudera. As a participant in the Program, you agree to (a) maintain your and your personnel's technical, sales and domain expertise and other requirements identified in your Application during the Term (defined in Section 9) as necessary to perform any obligations under these Terms or the Policies; (b) promote your products and services in a manner that will provide cross-market and cross-product opportunities for end customers to purchase the Products as described in the Policies; (c) if your web site includes a public facing page that lists partnerships, include on such page a reference to Cloudera and a hyperlink to the Site and the Cloudera Product download website in a conspicuous manner so as to enable end users of your website to obtain Products and information from Cloudera; and (d) not reverse engineer, modify, create derivative works of, remove any copyright notices on or in, sell, lease or otherwise alter the Products or promotional materials except as permitted herein. In the event Member wants to distribute, resale or other sell the Products to any end user, Member must enter into a reseller, referral or other similar agreement with Cloudera governing such activities. Additionally, upon request, Member is granted a Developer License to Cloudera Products during the Term, subject to the following terms:
(a) License and Delivery. Subject to the terms and conditions of this Agreement, Cloudera grants to Member a nonexclusive, nontransferable, revocable and limited right to: (i) download the Cloudera Product, on up to 50 of Member’s servers; and (ii) use the Cloudera Product solely in order to demonstrate and test the Cloudera Product’s functionality and develop Member’s own products.
(b) Restrictions. Unless expressly otherwise set forth in this Agreement, Member 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 production 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.
Benefits Upgrade: During the Term, Member may upgrade its Partner status to Silver, for the annual fees and additional member benefits as set forth on the Cloudera Connect Partner Portal. Cloudera may invite members to a Gold or Platinum status if they meet certain requirements set forth on the Cloudera Connect Partner Portal.
4. Modifications to These Terms or Policies. Cloudera reserves the right to modify these Terms (or any portion thereof), including, without limitation, any Member 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 Products (including, without limitation, "Cloudera Enterprise"), Site, Partner Portal, 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 Member in connection with the Program. Member retains all rights to all of its Materials and Intellectual Property Rights, including Member's logo and trademarks. 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. Trademark Licenses. Each party (the "Licensor") hereby grants the other party (the "Licensee") a nonexclusive, limited license to use the Cloudera Connect names, logos and trademark of the Licensor in any advertising, promotional, marketing or other materials, on the Site or Member's website (as applicable) or in other materials and media, to (i) promote the relationship of the parties; (ii) in the case of Member, identify Cloudera as a provider of Cloudera Products and to market and promote the Products; and (iii) in the case of Cloudera, identify Member as a participant in the Program and to market and promote any Member products or services. Member's specific use of Cloudera logos and trademarks is governed by the Cloudera Connect Partner Program Brand Use and Publicity Guidelines document. This document is available on the Partner Portal, and may be updated from time to time. Licensor reserves all right, title and interest (including, without limitation, any intellectual property rights) that it may have in any of its trademarks, names and logos, including any associated goodwill related thereto or arising from Licensee's use thereof. Licensee shall notify Licensor of any use of logos and trademark prior to publication, except that Member grants to Cloudera the right to place its logo onto Cloudera's Partner Directory page, and Cloudera grants to Member the right to place its logo onto Member's public-facing web page if one is available. Licensee shall post logos in accordance with policy provided by the Licensor and in accordance with trademark and publication requirements that accompany the logo. Licensor will notify Licensee of any changes to those policies and and Licensor will comply with those changes within a reasonable time. Except as expressly provided herein, no license or right in any trademark or associated goodwill of either party is granted or otherwise transferred by virtue of these Terms.
7. Confidential Information. During the Term, either party may disclose certain Confidential Information (defined in this Section) to the other. In such event, unless otherwise specifically authorized pursuant to a separate written agreement between Cloudera and Member, the receiving party shall (i) use such Confidential Information solely for the purposes for which it is provided by the other party; (ii) not disclose such Confidential Information to any third party; and (iii) otherwise protect, during the Term and for a period of three (3) years thereafter, such Confidential Information from unauthorized use and disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information, but no less than a reasonable degree of care. 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 disclosing party. For purposes of these Terms, "Confidential Information" means any information that is proprietary or confidential or that a party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party) or that should be considered to be confidential under the circumstances surrounding the disclosure. Confidential Information may be of a technical, business or other nature (including, but not limited to, information that relates to a party'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 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 receiving party before receiving the same from the disclosing party in connection with these Terms; (b) is independently developed by the receiving party; (c) is acquired by the receiving party 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 receiving party. In the event Member has separately executed a confidentiality agreement with Cloudera, the terms of that confidentiality agreement will control any inconsistencies between such confidentiality agreement and this Agreement. In addition, any suggestions, comments or other feedback provided by Member to Cloudera with respect to the Cloudera Product 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.
8. Suspension of Access to Partner Portal. Cloudera reserves the right, at any time, to suspend Member's access or use of all or any portion of the Partner Portal immediately for any reason, including if Cloudera believes, in good faith, that (i) Member's use of the Partner Portal: (a) poses a security risk or other threat to Cloudera or other users of the Partner Portal, (b) may adversely impact the Partner Portal, or (c) may subject Cloudera or its suppliers, licensors or affiliates to any third party liability; or (ii) Member is in breach of any Policies.
9. Term and Termination. The term ("Term") of these Terms commences upon the date Member's Application is approved and continues for a period of two years thereafter, and automatically renews for subsequent one year periods thereafter unless earlier terminated as provided below. 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 material breach of any obligation under these Terms. Following the expiration or termination of these Terms, (a) all licenses and rights hereunder will immediately terminate; (b) Member's participation in the Program will immediately terminate; (c) Member will cease displaying any Cloudera hyperlinks on its website; and (d) Sections 4 through 15 shall survive. 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).
10. 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, 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. MEMBER ACKNOWLEDGES AND AGREES THAT MEMBER HAS RELIED ON NO WARRANTIES
11. Indemnification. Member 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) Member's acts or omissions in violation of these Terms or any Policies; (ii) Member's own information on its website(s) and any Member products or Member services described therein; (iii) Member's violation of any applicable laws, regulations or orders; and/or (iv) Member's breach of any provision of these Terms.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (1) NEGLIGENCE OR WILLFUL MISCONDUCT OR (2) THE OBLIGATIONS SET FORTH IN SECTIONS 7 AND 11, 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) EITHER PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER UNDER THESE TERMS FOR ANY AND ALL CLAIMS EXCEED U.S. $2,500.00. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 12 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.
13. 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).
14. 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.
15. 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 Member, delivered to the address identified in the Application; and (ii) if sent to Cloudera, submitted at firstname.lastname@example.org. 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. Member 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 Member 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 Member.