Last Modified: April 13, 2018
These Cloudera Connect Partnership 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 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.
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 within 30 days of application approval. 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.
3. Participation Benefits.
3.1 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"), subject in each case to the terms and conditions of these Terms and any Policies. 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 tools and other information available on the Partner Portal as necessary to promote and market the Cloudera Products; (ii) market, promote and advertise the Cloudera Products and Cloudera 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 Cloudera Products in accordance with 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 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 the Cloudera Product download website so as to enable end users of your website to obtain 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 License. Subject to these Terms, Cloudera may grant a license to Member to use one or more Cloudera Products in connection with the Program depending on their membership level. Member must submit a request to Cloudera using a form specified by Cloudera that identifies the applicable Cloudera Products and the applicable license type (“License Request Form”). If Cloudera accepts the License Request Form in writing the Cloudera Products specified in such acceptance shall be deemed “Licensed Cloudera Products” subject to the applicable license type described below.
(a) Cloudera may grant to Member pursuant to an accepted License Request Form a nonexclusive, nontransferable, revocable, world-wide, royalty-free and limited right to: (i) download and install the specified Licensed Cloudera Product on up to 50 nodes on Member’s servers located on Member’s premises (or such other number of nodes in such other locations as may be specified in the applicable License Request Form); and (ii) use the Licensed Cloudera Product solely in order to demonstrate and test the Cloudera Product’s functionality and develop Member’s own products or items such as connectors or accelerators that will permit or improve Member’s products’ interoperability with Cloudera Products.
(b) Cloudera may grant to Member pursuant to an accepted License Request Form a nonexclusive, nontransferable, revocable, world-wide, royalty-free and limited right to: (i) download and install on Member’s servers located on Member’s premises (or such other locations as may be specified in the applicable License Request Form) the specified Licensed Cloudera Product to be used on a “Unique Identifier Block” basis as defined below; and (ii) use such Licensed Cloudera Product solely in order to demonstrate and test the Licensed Cloudera Product’s functionality and develop Member’s own products or items such as connectors or accelerators that will permit or improve Member’s products’ interoperability with any Cloudera Products. “Unique Identifier Block” means a block of 10 Unique Identifiers unless another number of Unique Identifiers is expressly stated in the applicable License Request Form. “Unique Identifier” means a unique user ID and password denoted for Member’s access to and use of the applicable Licensed Cloudera Products during the term specified in the License Request Form or, if no term is specified, until the expiration or termination of the Terms. A Unique Identifier may be used to access multiple development, test and/or production environments of Member’s cluster(s) which are running the Data Hub Edition or Data Engineering Edition of the Cloudera Enterprise platform (“Required Cloudera Product”). A Unique Identifier cannot be shared or used by multiple individuals concurrently. A Unique Identifier may be transferred from one individual to another if the original individual no longer requires or is no longer permitted access to or use of the applicable Licensed Cloudera Product. The Required Cloudera Product may be a Licensed Cloudera Product provided hereunder or provided pursuant to a separate written agreement with Member.
(d) The specific Licensed Cloudera Products subject to one or more of the foregoing licenses may be generally described in the Policies applicable to Member’s membership level. However, your license to Licensed Cloudera Products shall only be effective upon Cloudera’s acceptance of a License Request Form and only for those Licensed Cloudera Products specified therein. No licenses to other Cloudera Products, tools, drivers, software development kits, on-line services or other material are provided unless expressly set forth in these Terms and an accepted License Request Form or unless documented in a separate written agreement (including a click-to-accept agreement) between Cloudera and Member, even if such material is referenced in the Terms or the Partner Portal. The Licensed Cloudera Products may contain copyrighted, patented and/or otherwise legally protected software of third parties, including the Cloudera Open Source Distribution, made available to Member (“Third Party Software”). The third-party licenses may impose obligations associated with, e.g., downstream use and distribution of the Third Party Software. Member shall comply with these obligations. Third Party Software made available to Member may be found at: https://www.cloudera.com/documentation/other/Licenses/topics/Third-Party-Licenses.html.
(e) Unless otherwise specified by Cloudera in writing, the foregoing licenses set forth in Section 3.1.1 (b), (c) or (d) above shall not affect any licenses to Cloudera Products extended by Cloudera to Member under any version of the Terms in effect prior to the current version of the Terms or pursuant to one or more separate written agreements between Member and Cloudera. Furthermore, Member is not automatically granted any new licenses by acceptance of these Terms, as either a new or existing Member, it being expressly understood and agreed that all new licenses must be granted pursuant to a License Request Form.
(f) Notwithstanding anything contained in these Terms to the contrary, Licensed Cloudera Products shall be subject to any additional limitations (e.g., license term or limitations on the number of copies) as may be specified in the applicable License Request Form. Cloudera Products obtained outside of the Program shall be subject to the applicable terms and conditions pursuant which they were provided to Member even if the same Cloudera Products are licensed pursuant to a License Request Form.
3.1.2 Restrictions. Unless expressly otherwise set forth in this Agreement, Member will not: (i) modify, alter, translate or create derivative works of the Licensed Cloudera Product; (ii) disassemble, decompile, reverse engineer or reverse assemble any portion of the Licensed Cloudera Product or attempt to discover any source code or underlying ideas or algorithms of the Licensed Cloudera Product; (iii) license, sell, distribute, assign, sublicense, rent, lease, loan, provide, disclose, distribute or otherwise transfer all or any portion of the Licensed Cloudera Product; (iv) make, have made, reproduce or copy the Licensed Cloudera Product; (v) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Licensed Cloudera Product; (vi) use the Licensed Cloudera Product for production purposes; (vii) publicly display, or otherwise make publicly available any portion of the Licensed Cloudera Product; (viii) use the Licensed Cloudera Products or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC or any other U.S. government agency; or (ix) cause or permit any other party to do any of the foregoing.
3.1.3 Support. The Licensed Cloudera Products are provided without any support except to the extent expressly provided in the applicable section of the Policies for specified membership levels. The support will be provided on a commercially reasonable basis subject to the availability of support resources.
3.2 Knowledge Transfer Material. Depending upon Member’s 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 the terms and conditions of these Terms including without limitation Section 7, provided that notwithstanding anything contained herein to the contrary, 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.
3.4 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 and such other license, agreement or arrangement shall govern the use of the Cloudera SDKs and Other Material notwithstanding anything contained in these Terms to the contrary.
3.5 Benefits Upgrade. During the Term, Member may upgrade its Member status to Silver or Gold, for the annual fees (“Membership Fees”), with the additional member benefits and subject to the requirements all as set forth on the Partner Portal. Cloudera may, in its sole discretion, invite members to Platinum status if they meet certain requirements set forth on the Partner Portal. Membership Fees are exclusive of any tax and, unless otherwise specified in writing, shall be payable in US Dollars within thirty (30) days of invoice date by bank wire transfer, electronic ACH deposit or Member check in immediately available funds to an account designated by Cloudera. Membership Fees shall apply to the annual period as specified in the applicable order form and/or invoice. Renewal Membership Fees are due and payable within thirty (30) days of the end of the applicable annual membership period. Failure to pay Fees when due will result in an automatic downgrade to Bronze with or without notice from Cloudera.
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 email 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 – Partner Branding document or such other written guidelines provided by Cloudera to Member for use in connection with the Program. The Cloudera Brand Guideline – Partner Branding 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 this Agreement with respect to information covered by both agreements. 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, (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.
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 one year 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 within 5 business days; and (d) Sections 5, 7, 9, 11, 12, 15 and 17 shall survive. The expiration or termination of these Terms shall not affect any preexisting or separately executed agreements between the parties except that either party may elect to exercise any applicable termination for convenience clause or expiration by non-renewal clause in such separate agreements in connection with the termination or expiration of these Terms.
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 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. THE PROGRAM AND ALL CLOUDERA PRODUCTS (INCLUDING LICENSED 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 ANY AND 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.
12.1 With respect to the Licensed Cloudera Products as and in the form provided under these Terms, Cloudera agrees, at its own expense, to pay all IP Damages (as defined below) and defend Member from (or at Cloudera's option, settle) any claim instituted by a third party and asserted against Member that the Licensed Cloudera Products when used in accordance with the applicable documentation for purposes permitted in these Terms infringe any United States patent, copyright, trade secret, or other proprietary right of a third party ("IP Claim"), provided that Member: (i) promptly notifies Cloudera in writing of any such IP Claim; (ii) gives Cloudera sole control over the investigation, preparation, defense and settlement of the IP Claim; and (iii) assists and fully cooperates with Cloudera in the defense of same. Cloudera agrees to pay any damages or liabilities awarded against Member (or agreed to in a settlement by Cloudera) resulting from the IP Claim, including any awarded costs and attorneys' fees (collectively "IP Damages"). Cloudera will not be responsible for any settlement it does not approve in writing prior to such settlement. Following notice of an IP Claim or any facts which may give rise to such IP Claim, Cloudera may, in its sole discretion and at its option: (a) procure for Member the right to continue to exercise the license granted to Member under the Terms; (b) replace the Licensed Cloudera Product; or (c) modify the Licensed Cloudera Product to make it non-infringing. If Member is enjoined in a non-appealable judgment in regard to the Licensed Cloudera Product, and Cloudera determines that it is not commercially reasonable to perform any of alternatives (a) through (c), Cloudera will terminate the Terms.
12.2 In no event will Cloudera have any obligations under Section 12.1 or any liability for any claim or action if Member pays no Membership Fees or the IP Claim is caused by, or results from: (i) any negligent or willful misconduct of Member; (ii) combination or use of the Licensed Cloudera Product with non-Cloudera software or services, or any equipment, data or other materials, if such IP Claim would have been avoided absent such combination or use; (iii) modification of the Licensed Cloudera Products by anyone other than Cloudera if such IP Claim would have been avoided by use of the unmodified Licensed Cloudera Product; (iv) continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (v) use of the Licensed Cloudera Product in a manner not strictly in accordance with these Terms; (vi) Cloudera's modification of the Licensed Cloudera Product in compliance with Member’s specifications; or (vii) use of other than Cloudera's most current release of the Licensed Cloudera Products if the claim or action would have been avoided by use of the most current release, provided Member is given an opportunity to use such most current release for no additional fee.
12.3 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.
12.4 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: (i) any Member product or service offering infringing any intellectual property rights of any third-party when used in connection with the Program, or (ii) 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 SECTIONS 7 and 12.4, 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 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 PROCEEDING 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 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).
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, 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 Products.
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 16, 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 this Agreement 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 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.