Last Modified: August 1, 2022
These Cloudera Partner Network Terms ("Terms") apply to your participation in the Cloudera Partner Network Program ("Program") described more fully at the Cloudera website www.cloudera.com ("Site"). These Terms are between you and your wholly and majority owned subsidiaries that are accepted into the Program as set forth below ("you" or "Member") and Cloudera, Inc. ("Cloudera," "we" or "us"). BY PARTICIPATING IN THE PROGRAM, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE BOUND BY THEM. IF YOU (I) DO NOT AGREE WITH ANY PART OF THESE TERMS OR (II) ARE NOT AUTHORIZED TO ENTER INTO THEM ON BEHALF OF YOUR EMPLOYER OR ORGANIZATION, YOU MAY NOT PARTICIPATE IN THE PROGRAM.
1. Application and Approval of Member Participation.
1.1 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 authority to legally bind such entity to these Terms (including, without limitation, having the appropriate signature authority delegated to you by the entity and having the legal capacity to sign agreements as an adult of at least 18 or 21 years of age depending upon the laws of the jurisdiction where you currently reside). Nothing herein restricts Cloudera's ability to enroll other companies or entities in the Program.
1.2 In order to participate in the Program, you must register for an account, submit your Program application ("Application") via the Site and subsequently pay any applicable Program fees. You must accept these Terms as part of the Application process. You agree not to provide any untruthful, inaccurate or fraudulent information in your Application. We may accept or reject your Application at our discretion for any or no reason. We may waive some registration and application requirements if membership is granted to you by us when you sign specified agreements provided that you have also accepted these Terms when signing such agreement.
1.3 If your Application is approved, you will be entitled to access to the partner portal ("Partner Portal"), where you will have access to Cloudera's partner tools and other Program materials and information. The Partner Portal contains Program policies, privacy policies, and other documents concerning your participation in the Program, and such policies may be updated by Cloudera from time to time upon posting in the Partner Portal (collectively "Policies"). The Policies include, without limitation, the Cloudera Partner Network Membership Guide, which may be provided to you through the Portal and/or by electronic copy ("Program Guide"), and Cloudera’s Privacy Statement. For purposes of these Terms, all references to "Customer" or "Client" in Cloudera’s Privacy Statement are understood to be references to Member. The Program Guide may include or reference other Policies that are applicable only to Members who meet certain requirements and engage in specified activities (e.g., resale, solution certification, use of MDF benefits, etc.). You expressly agree to be bound by the Terms and all applicable Policies.
1.4 Each wholly and majority owned subsidiary that desires to be included in your membership in the Program must complete an application for membership. Following processing of the wholly or majority owned subsidiary's application by Cloudera, such subsidiary will be notified of its membership tier and will receive the benefits associated with that tier. Subject to these Terms, including without limitation the section below entitled Export Control Laws, and the approval of your wholly and majority owned subsidiaries into the Program, your membership is for all countries worldwide.
2. Account Registration and Passwords. You represent and warrant that: (i) all of your registration and account information is true, accurate, and complete; (ii) you will maintain the security of your account information and your password, and not share your password with any other party; and (iii) you accept all responsibility for all activity that occurs under your user name. Any breach or suspected breach of the foregoing representations may result in immediate termination or suspension of your account or access to the Partner Portal. Please review Cloudera’s Privacy Statement regarding how Cloudera processes personal data.
3. Participation Benefits.
3.1 Product Promotion. 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, "Cloudera Products"). Except as otherwise provided herein or in a separate written agreement between Member and Cloudera, Cloudera hereby grants to you a limited, nonexclusive license to (i) access, download and use the sales and marketing tools and other information available on the Partner Portal as necessary to promote and market the Cloudera Products; (ii) access, download and use internally the data setup toolkits available on the Partner Portal as necessary to promote and market the Cloudera Products; (iii) market, promote and advertise the Cloudera Products and Cloudera on your website; and (iv) distribute any promotional materials as may be made available from Cloudera from time to time to current and prospective customers of the Cloudera Products, in each case, subject to the provisions of these Terms, the Policies 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 or as otherwise agreed with Cloudera 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 Cloudera Products as described in the Policies; and (c) not reverse engineer, modify, create derivative works of, remove any copyright notices on or in, sell, lease or otherwise alter the Cloudera Products or promotional materials except as permitted herein. Moreover, as a participant in the Program, if your web site includes a public facing page that lists partnerships, you may include on such page a reference to Cloudera and a hyperlink to the Site and any publicly available Cloudera Product download website so as to enable end users of your website to obtain any publicly available Cloudera Products and information from Cloudera. In the event Member wants to distribute, resell or otherwise sell the Cloudera Products to any end user, Member must enter into a reseller, referral or other similar agreement with Cloudera governing such activities. Additionally, upon Member’s request and after Cloudera’s approval, Member may be granted a developer license to certain Cloudera Products during the Term, as specified in Section 3.1.1 below.
3.1.1 Non-production Licenses. Cloudera may grant a license and/or subscription to Member to use one or more Cloudera Products in connection with the Program depending on membership level. Member must submit a request to Cloudera using a form specified by Cloudera that identifies the applicable Cloudera Products and the proposed non-production uses ("License Request Form"). Member acknowledges that Cloudera may refuse any such request in its sole discretion, and, for approved requests, Cloudera will have no obligation to provide technical support or updates for Products. For clarity, use of any such Products will be limited to the specified non-production uses and will be governed by additional license terms applicable to the specific Cloudera Product, which will be made available separately.
3.2 Knowledge Transfer Material. Depending on membership level, Cloudera may provide Member with access to certain Cloudera Confidential Information (as defined in Section 7) in the form of slides or documents (in electronic or hardcopy format) or streaming media designated as knowledge transfer, technical transfer, knowledge base, service delivery kits, training or other similarly designated material as specified in the Program Guide ("Knowledge Transfer Material"). All such Knowledge Transfer Material shall be subject to these Terms, including Section 7; provided, however, that Member may reproduce, distribute internally and use portions or entire copies of Knowledge Transfer Material for purposes of assisting Member with integrating, deploying, testing, developing, certifying and/or supporting its products and services with Cloudera Products or as otherwise specified in the Program Guide.
3.3 Partner Information.
3.3.1 Member Material. Member may provide Cloudera with certain Member Confidential Information (as defined in Section 7) in hardcopy or electronic format (including information submitted electronically through online forms and templates completed by Member using the Partner Portal) as required for its general participation in the Program or for specific program activities such as product certification ("Member Material"). All such Member Material shall be subject to these Terms, including Section 7, provided, however, that (i) Cloudera may reproduce, distribute internally and use portions or entire copies of Member Material for purposes of carrying out the Program; assisting Member with integrating, deploying, certifying and/or supporting its products and services with Cloudera Products; measuring, analyzing or improving the use of Member products with Cloudera Products; or as otherwise specified in the Program Guide and (ii) Cloudera may freely disclose to third parties without restriction or payment of any fees or royalties any Member Material approved in writing by Member for such disclosure.
3.3.2 Personal Data. Cloudera agrees that it will not require Member to provide or disclose to Cloudera any personal data, except for certain limited personal data required for Member’s account registration and participation in the Program. Member warrants that, except for the foregoing limited personal data required for the Program, it will not provide or disclose personal data to Cloudera and that Member Materials will be free from any personal data. Cloudera’s Privacy Statement shall govern the processing of any personal data.
3.3.3 Data Protection. Notwithstanding subsection 3.3.2, Member hereby agrees (a) to the terms and conditions set forth in the Partner Data Processing Addendum (“DPA”); and (b) that the Partner DPA shall be part of and incorporated into these Terms.
3.4 Other Cloudera Material. Cloudera may, in its sole discretion, make available to Member as part of the Program, development tools, such as software development kits, and other materials to assist Member with the development and deployment of Member products that interoperate with Cloudera Products ("Cloudera SDKs and Other Material"). Such Cloudera SDKs and Other Material may be provided to (i) select members (potentially including or excluding Member), (ii) all members with a certain membership status, (iii) all members regardless of membership status and/or (iv) generally to all members and Cloudera end customers. Cloudera, in its sole discretion, will make such Cloudera SDKs and Other Material available under separate signed license agreements, click-to-accept agreements or such other mutually agreed upon written arrangements.
3.5 Membership Tier Changes. During the Term, Member must comply with the requirements for its assigned tier to maintain the benefits associated with that tier. Member acknowledges that Cloudera reserves the right to upgrade or downgrade Member’s tier assignment as more fully explained in the Program Guide.
3.6 Market Development Funds. Cloudera may allow qualifying Members to use market development funds (MDF) in the manner specified in the Program Guide as determined by Cloudera in its sole discretion.
4. Modifications to These Terms or Policies. Cloudera reserves the right to modify the Terms or Policies (or any portion thereof) including, without limitation, any Member benefits described in these Terms or any related Policies, from time to time by posting a revised version on the Partner Portal or by otherwise notifying you by e-mail as specified below. Cloudera will indicate at the top of these Terms or Policies the date these Terms or the Policies, 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 to the Terms under this Section, Cloudera will use commercially reasonable efforts to provide notice to an e-mail address provided by you for this purpose. You will have 90 days from the time Cloudera posts new Terms and/or Policies or sends an e-mail notice of changes to Terms before changes take effect in connection with your participation in the Program. If Member does not accept the new Terms or new Policies, Member may at any time upon written notice to Cloudera withdraw from the Program and terminate its participation in the Program. If Member elects to withdraw, Member shall not be entitled to a refund of any Membership Fees paid unless otherwise agreed in writing by Cloudera.
5. Proprietary Rights. The Cloudera Products, Site, Partner Portal, Knowledge Transfer Material, Content (defined in this Section), Cloudera Marks (defined in Section 6 below) 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 Member 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 Member’s or Cloudera’s names, logos and trademark as specified in writing (collectively the "Marks") 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 Cloudera 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 Marks is governed by the then-current version of the Cloudera Brand Guidelines document or such other written guidelines provided by Cloudera to Member for use in connection with the Program. The Cloudera Brand Guidelines document is available on the Partner Portal and may be updated from time to time. Cloudera’s specific use of Member’s Marks is governed by the written guidelines provided by Member to Cloudera. The party that provides the Marks ("Licensor") reserves all right, title and interest (including, without limitation, any intellectual property rights) that it may have in any of its Marks, including any associated goodwill related thereto or arising from the use of the Licensor’s Marks by the other party ("Licensee"). Licensee shall notify Licensor of any use of Marks 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 the policy provided by the Licensor (as described above) and in accordance with trademark and publication requirements that accompany the logo. Licensor will notify Licensee of any changes to those policies 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. Licensor may terminate the license to its Marks upon written notice to the Licensee in which case Licensee shall cease using the Marks in new material and on its website and dispose of printed materials bearing the Marks within a reasonable time-frame.
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. Notwithstanding the foregoing, where the Confidential Information disclosed is: (a) the disclosing party’s trade secret, the receiving party will treat such information as Confidential Information for as long as the Confidential Information remains the disclosing party’s trade secret; or (b) required by law to be protected for a duration beyond that provided hereunder, the receiving party will maintain such information in confidence for the duration required by law. 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 due to the nature of the information and circumstances surrounding its disclosure would be reasonably understood by a person with no knowledge of the relevant trade or industry to be confidential or proprietary. 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 Cloudera Products 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) the receiving party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing party in connection with these Terms; (b) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information; (c) the receiving party receives from another source without restriction on disclosure and without restriction on disclosure and without breach of a nondisclosure obligation; or (d) is in 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 these Terms with respect to information covered by both agreements. In addition, any suggestions, comments or other feedback provided by Member to Cloudera specifically 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, (c) may adversely impact Cloudera’s business interests, or (d) may subject Cloudera or its suppliers, licensors or affiliates to any third party liability; or (ii) Member is in breach of any Policies or the Partner Data Processing Addendum.
9. Term and Termination. These Terms take effect on the date Member's Application is approved and continue for a period of one year thereafter, and automatically renew for subsequent one-year periods thereafter unless earlier terminated as provided below (collectively the "Term"). 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 within 5 business days; and (d) Sections 5, 7, 9, 11, 12, 13, 15 and 17 shall survive. The expiration or termination of these Terms shall not affect any preexisting or separately executed agreements between the parties.
10. Interoperability Testing and Technology Certification.
10.1 Unless otherwise specified in a separate signed agreement between Member and Cloudera, the following terms and conditions in this Section 10 and other applicable portions of the Terms shall apply to any (i) product interoperability or technology certification testing work performed or materials provided by Cloudera and/or Member in connection with the Program ("Interoperability Testing") and (ii) any certification Marks or other words or designations of certification (e.g., "Cloudera Certified Technology") provided by Cloudera to Member in connection with successful Interoperability Testing ("Interoperability Marks"). The following terms together with any additional terms relating to interoperability or integration testing and certification work as specified in the Policies, or in other material in the Portal, including without limitation material describing any aspects of the "Cloudera Certified Technology" program or similar programs, shall be referred to collectively as the "Interoperability Terms." The Terms shall prevail if there are any inconsistencies between the other Interoperability Terms and the Terms.
10.2 Successful conclusion of Interoperability Testing for a product implies that the applicable Member’s product ("Interoperable Product") meets the specifications defined in the applicable documentation provided by Cloudera and has been successfully tested by Cloudera and/or Member against them. Interoperability Testing and the use of Interoperability Marks however does not (i) guarantee fault-free operation of the Interoperable Product alone or in combination with any Cloudera Product, (ii) constitute an endorsement of Member’s product by Cloudera, or (iii) constitute an acknowledgement by Cloudera of the quality or performance of Member’s products or services.
10.3 Member is entitled to use the Interoperability Marks and other rights granted with respect to Interoperability Testing only for the version of the Member Interoperable Product tested during the Interoperability Testing process and only for the period designated by Cloudera. New Interoperability Testing must be conducted to use the Interoperability Marks with other revisions or versions of Member’s products. There is no obligation on the part of Cloudera to offer Interoperability Testing, certification or re-certification for any particular Member product.
10.4 Cloudera will perform its Interoperability Testing obligations (including reviewing Member’s test results) in a professional and workmanlike manner. This covenant will be in effect for thirty (30) days from performance of the Interoperability Testing by Cloudera. Any deficiencies in the Interoperability Testing must be reported in writing within thirty (30) days of completion of such testing. Provided Cloudera validates the existence of such deficiency, Cloudera will at its sole option either re-perform the services or withdraw use of the Interoperability Marks, if previously granted. This is Member’s sole and exclusive remedy and Cloudera’s entire liability for a breach of Cloudera’s Interoperability Testing obligations under any Interoperability Terms.
10.5 Member will perform its Interoperability Testing obligations in a professional and workmanlike manner and provide Cloudera with accurate data as reasonably required to perform, evaluate, duplicate, confirm or verify Interoperability Testing. Member warrants that all data and software provided by Member to Cloudera in connection with Integration Testing is free of viruses, Trojan horses, other malicious software and any personal health information, personally identifiable information or other personal data or individual financial information.
10.6 Without prior written consent from Cloudera, Member is not permitted to make any representations concerning Interoperability Testing or Cloudera software license, support or professional services terms.
10.7 In all phases and for all Interoperability Testing activities, reasonable cooperation of Member is required. Further, Member must provide free of charge all reasonable contributions as required in connection with performance of its obligations for Interoperability Testing, including but not limited to providing necessary personnel, hardware, software, data, and deliverables (electronically or otherwise).
10.8 Member must promptly notify Cloudera of any change in the circumstances on which the Interoperability Testing or Interoperability Marks are based, including but not limited to the fact that (i) the Member product is no longer generally available, (ii) the Member product is technically modified, updated or upgraded in a way that may affect the previous results of the Interoperability Testing, or (iii) the Member’s name or the name of Member’s product is changed. In such cases Cloudera may withdraw certification and/or the Member product may have to be recertified or renamed, as determined by Cloudera in its sole discretion.
11. DISCLAIMER OF WARRANTIES.
11.1 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, INTEROPERABILITY TESTING, 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 ANYAND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PROGRAM, INTEROPERBAILITY TESTING, CLOUDERA PRODUCTS AND CLOUDERA MATERIAL 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. CLOUDERA MAKES NO REPRESENTATION THAT A MEMBER’S PRODUCT WILL OPERATE FREE FROM DEFECT, WITHOUT ERROR OR ACCORDING TO ITS APPLICABLE DESIGN STANDARDS, OR THAT THE PRODUCT AND THE SYSTEMS OF THIRD PARTIES WILL BE INTEROPERABLE AS A RESULT OF INTEROPERBAILITY TESTING. CLOUERA INTEROPERBAILITY TESTING ONLY DEFINES CERTAIN BEHAVIOR AND CHARACTERISTICS A PRODUCT MUST DEMONSTRATE TO INTEROPERATE WITH SPECIFIED CLOUDERA PRODUCTS. MEMBER WILL BE FULLY RESPONSIBLE FOR PROVIDING ALL INSTALLATION AND SUPPORT OF ITS PRODUCTS. CLOUDERA SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM (A) ANY MEMBER PRODUCTS OR (B) USE OF ANY INTEROPERABILITY MARKS BY MEMBER OR ANY OTHER PARTY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
11.2 NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD-PARTY LICENSES, THESE TERMS, THE PARTNER DEVELOPMENT SUBSCRIPTION OR ANY OTHER AGREEMENT MEMBER MAY HAVE WITH CLOUDERA: (I) CLOUDERA PROVIDES THIRD-PARTY SOFTWARE TO MEMBER AS-IS, WITHOUT WARRANTIES OF ANY KIND; (II) CLOUDERA DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THIRD-PARTY SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (III) CLOUDERA IS NOT LIABLE TO MEMBER FOR ANY CLAIMS ARISING FROM OR RELATED TO THIRD-PARTY SOFTWARE; AND (IV) WITH RESPECT TO THE THIRD-PARTY SOFTWARE, CLOUDERA IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES RELATED TO LOST REVENUE, LOST PROFITS, LOSS OF INCOME, LOSS OF BUSINESS ADVANTAGE OR DAMAGE TO, OR UNAVAILABILITY, LOSS OR CORRUPTION OF DATA.
12.1 Cloudera, at its sole expense, will defend Member and its directors, officers and employees (each a "Member Indemnitee") from and against any and all third party claims, and indemnify any Member Indemnitee from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) that are finally awarded by a court of competent jurisdiction, or included in a settlement approved in advance by Cloudera, resulting from or arising in connection with any willful misconduct or fraud by Cloudera in the performance of its obligations hereunder.
12.2 Member, at its sole expense, will defend Cloudera and its directors, officers and employees (each a "Cloudera Indemnitee") from and against any and all third party claims, and indemnify any Cloudera Indemnitee from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) that are finally awarded by a court of competent jurisdiction, or included in a settlement approved in advance by Member, resulting from or arising in connection with any willful misconduct or fraud by Member in the performance of its obligations hereunder.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (1) WILLFUL MISCONDUCT OR FRAUD OR (2) THE OBLIGATIONS SET FORTH IN SECTION 7, 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, THESE TERMS, 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 THE GREATER OF U.S. $2,500.00 OR THE AMOUNT OF FEES PAID BY MEMBER TO CLOUDERA UNDER THESE TERMS (INCLUDING THE PROGRAM GUIDE BUT EXCLUDING SEPARATE RESELLER, OEM, MSP OR OTHER SIMILAR AGREEMENTS) IN THE TWELVE-MONTH PERIOD PRECEEDING THE CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 13 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.
14. Force Majeure. Neither party will be liable for 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).
15. Compliance with Laws.
15.1 Export Control Laws. Member acknowledges that the laws and regulations of the United States restrict the export and re-export of software, commodities and technical data of United States origin. Member will comply with all export control laws and regulations of the United States and any other applicable governmental authority in dealing with the Cloudera Products, including without limitation, the U.S. Export Administration Regulations administered by the U.S. Department of Commerce, and U.S. sanctions administered by the U.S. Department of the Treasury ("Export Control Laws"). Member represents that it will not sell, export (including "deemed" exports), re-export, transship, transfer, transmit, divert or otherwise dispose of the Cloudera Products, directly or indirectly to any person, firm, entity, or country prohibited by applicable Export Control Laws, or for any purpose prohibited by Export Control Laws, including, without limitation, nuclear, chemical or biological weapons proliferation development of missile technology, or for use in the oil and gas industry, in particular in connection with any deep-water, Arctic offshore or shale projects. Member will not transfer or provide the Cloudera Products to any party for a military purpose or end use. Member represents that is not an entity listed on OFAC’s list of Specially Designated Nationals, Sectoral Sanctions Identification List, or any other export control lists. Member will inform relevant Member personnel of the necessity to comply with these restrictions.
15.2 Anti-Corruption Compliance. Member will comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act ("FCPA"), the U.K. Anti-Bribery Act, and all other applicable anti-corruption laws. Member represents that no payment or gift of money or anything of value has been or will be offered, authorized, promised, provided or paid, directly or indirectly, to any government official, state-owned enterprise official, public international organization official, political party official (or candidate for such office) or political party for the purpose of influencing official acts and decisions (including failures to act or decide) in order to assist Cloudera in obtaining or retaining an improper business advantage. Member will promptly notify Cloudera if it receives a request to take any action which may violate its obligations under this Section or any applicable anti-corruption law. Member agrees that its applicable books and records will be available for review by an independent third party appointed by Cloudera at its expense to confirm Member’s compliance with its obligations under this provision provided that such third party is subject to confidentiality restrictions.
16. Entire Agreement. These Terms, together with any Policies and the Partner Data Processing Addendum, constitute the entire agreement between the parties with respect to the Program. Nothing in these Terms supersedes, modifies or otherwise affects any other.
17. 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 in Santa Clara County, California, U.S.A. in accordance with the UNCITRAL Arbitration Rules ("UNCITRAL Rules") in effect, which rules are deemed to be incorporated by reference into this Section 17, subject to the following: (i) the arbitration tribunal shall consist of three (3) arbitrators to be appointed according to the UNCITRAL Rules; (ii) the language of the arbitration shall be English and (iii) the arbitrators are skilled and experienced in product distribution. Notwithstanding anything in these Terms or in the UNCITRAL Rules or otherwise, the arbitration tribunal shall not have the power to award injunctive relief or any other equitable remedy of any kind against any party unless such award both (x) is expressly appealable to and subject to de novo review by the courts (Santa Clara County, California), and (y) would not, if upheld, have the effect of impairing, restricting, or imposing any conditions on the right or ability of such party or any of its affiliates to conduct its respective business operations or to make or dispose of any other investments. The prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. Notwithstanding the foregoing, the parties agree that all matters concerning ownership of the Cloudera Products and protection of Intellectual Property Rights therein, including, but not limited to, the ability to seek injunctive or other equitable relief will be dealt with exclusively in a court of competent jurisdiction (each an "IP Protection Action") and the exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. All notices under these Terms will be in writing (including e-mail) and (i) if sent to Member, delivered to the physical or e-mail 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.