Partner Development Subscription Agreement

CLOUDERA PARTNER DEVELOPMENT SUBSCRIPTION AGREEMENT

THIS CLOUDERA PARTNER DEVELOPMENT SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS AN AGREEMENT BETWEEN THE COMPANY OR ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“PARTNER”) AND CLOUDERA, INC., AND ITS AFFILIATES (“CLOUDERA”) AND GOVERNS PARTNER’S ACCESS TO AND USE OF THE CLOUDERA SOFTWARE THAT THIS AGREEMENT ACCOMPANIES OR THAT IS IDENTIFIED ON THE DOWNLOAD PAGE FROM WHICH THIS AGREEMENT IS PRESENTED (THE “LICENSED SOFTWARE”).

BY ACCEPTING THIS AGREEMENT (THE DATE OF SUCH ACCEPTANCE, THE “EFFECTIVE DATE”), PARTNER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF PARTNER REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND PARTNER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS SET FORTH HEREIN, HE OR SHE MUST NOT ACCEPT THIS AGREEMENT AND PARTNER MAY NOT USE THE LICENSED SOFTWARE.

1. PURPOSE. Subject to the terms of this Agreement, Cloudera will make the Licensed Software available to Partner free-of-charge, as a benefit of Partner’s membership in the Cloudera Partner Network (the “Program”), solely for the purposes of allowing Partner to (i) conduct internal training on the Licensed Software, (ii) develop Partner’s own products or items, such as connectors or accelerators, that permit or improve the interoperability of Partner’s own products with the Licensed Software (the “Partner Products”), (iii) test the Licensed Software for use with Partner Products, and (iv) demonstrate the Licensed Software to potential end customers (the “Authorized Purposes”).

2. DELIVERY; TRIAL LICENSE; RESTRICTIONS; FEEDBACK; OWNERSHIP.

2.1. Delivery. Upon Partner’s acceptance of this Agreement, Cloudera will make the Licensed Software available to Partner. Any updates to the Licensed Software that Cloudera, in its sole discretion, makes available to Partner if and when available during the Agreement Term (as defined in Section 3 below) will also be considered Licensed Software under this Agreement.

2.2. License. Subject to the terms and conditions of this Agreement, Cloudera grants Partner, during the Agreement Term, a limited, non-exclusive, non-transferable, revocable, worldwide, royalty-free license to use the Licensed Software solely for the Authorized Purposes.

2.3. Restrictions. Unless otherwise expressly permitted in this Agreement, Partner agrees that it will not, nor will it permit or authorize any third party to (i) sell, rent, lease, transfer, assign, sublicense, distribute, or provide third parties with access to, or the rights to use, the Licensed Software; (ii) use or host the Licensed Software to provide services for, or otherwise for the benefit of, third parties; (iii) use the Licensed Software for production purposes; (iv) publicly display, or otherwise make publicly available any portion of the Licensed Software; (v) bypass or attempt to avoid any process, system or software designed to manage or control access to the Licensed Software; (vi) modify, alter, translate or create derivative works of the Licensed Software; (vii) disassemble, decompile, reverse engineer or reverse assemble the Licensed Software, in whole or in part, or attempt to derive any source code or bypass any code obfuscation, except to the extent that Partner is entitled to do so by applicable law; (viii) modify, obscure, or remove any trademark, logo, copyright or other intellectual property rights notices included in or on the Licensed Software; (ix) publish any performance or benchmark tests or analysis relating to the Licensed Software or use them for competitive purposes; or (x) otherwise use or copy the Licensed Software in a manner not expressly permitted by this Agreement.

2.4. Ownership. Cloudera and its licensors own and will retain all right, title, and interest in and to the Licensed Software and related documentation, including any and all Intellectual Property Rights therein and thereto. Except as expressly set forth in this Agreement, Partner does not acquire any other rights, express or implied, in or to the Licensed Software. CLOUDERA RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER.

3. TERM AND TERMINATION. The term of this Agreement commences on the Effective Date and expires either (i) one year thereafter or (ii) on the date that Partner’s membership in the Program terminates or expires, whichever is first to occur (the “Agreement Term”), unless terminated earlier in accordance with this Section 3. Either party may terminate this Agreement immediately upon written notice to the other party if the other party is in material breach of any obligation under this Agreement. Upon any termination or expiration of this Agreement, the rights and licenses granted to Partner under this Agreement will immediately terminate, and Partner must immediately cease using, and must return to Cloudera (or, at Cloudera’s request, delete or destroy), the Licensed Software and all other tangible items in Partner’s possession or control that contain Confidential Information provided to Partner under this Agreement. The terms of Sections 2.3, 2.4, 3, 5, 6, 7, 8, and 9 will survive any expiration or termination of this Agreement.

4. SUPPORT. The Licensed Software is provided without any support except to the extent expressly set forth in Program policies or guides made available to Partner within the Partner Portal (the “Program Policies”) for specified Program membership levels. Any support that Cloudera may provide will be provided on a commercially reasonable basis subject to the availability of support resources.

5. THIRD-PARTY SOFTWARE. Partner acknowledges and agrees that (i) the Licensed Software may contain certain copyrighted, patented and/or otherwise legally protected software and/or material of third parties (“Third-Party Software”); and (ii) in addition to the terms of this Agreement, its use is further subject to the terms of third-party licenses applicable to such Third-Party Software, which may be licensed to Partner directly from the applicable third party. Partner is advised to read such third-party license agreements prior to using the Licensed Software. If Partner does not agree to the terms of such third-party license agreements, Partner may not use the Third-Party Software and the Licensed Software may not function. Partner acknowledges that Cloudera makes a list of Third-Party Software available to Partner (i) on Cloudera’s website, (ii) in the Licensed Software itself, the Licensed Software source code (if made available to Partner by Cloudera) and/or the third-party notice file that accompanies the Cloudera Product, and/or (iii) in another reasonable manner. Further, Partner acknowledges that such third-party suppliers may disclaim and make no representation or warranty with respect to such Third-Party Software and assume no liability for any claim that may arise with respect to such Third-Party Software or Partner’s use or inability to use the same.

NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD-PARTY LICENSES, THIS AGREEMENT OR ANY OTHER AGREEMENT PARTNER MAY HAVE WITH CLOUDERA: (A) CLOUDERA PROVIDES THIRD-PARTY SOFTWARE TO PARTNER AS-IS, WITHOUT WARRANTIES OF ANY KIND; (B) 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; (C) CLOUDERA IS NOT LIABLE TO PARTNER FOR ANY CLAIMS ARISING FROM OR RELATED TO THIRD-PARTY SOFTWARE; AND (D) 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.

6. CONFIDENTIALITY. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Cloudera to Partner, its affiliates and their respective employees, contractors and agents concerning or related to this Agreement or Cloudera (whether before, on or after the Effective Date) which Partner knows or should know, due to the nature of the information and circumstances surrounding its disclosure, is confidential information of Cloudera. Additionally, any suggestions, comments, or other feedback that Partner provides to Cloudera specifically with respect to the Licensed Software (“Feedback”) will constitute Confidential Information of Cloudera, and Cloudera will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Partner will, during the Agreement Term and thereafter, maintain the confidentiality of the Confidential Information and will not use such Confidential Information except for the Authorized Purposes. Partner will use the same degree of care in protecting the Confidential Information as Partner uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information does not include information that Partner can demonstrate (i) was already known to Partner, without an obligation of confidentiality, at the time of disclosure; (ii) was generally available to the public at the time of disclosure to Partner; (iii) became generally available to the public after disclosure other than through any act or omission of Partner; (iv) was subsequently lawfully disclosed to Partner by a third party without any obligation of confidentiality; or (v) was independently developed by Partner without use of or reference to Confidential Information disclosed by Cloudera. Partner may disclose Confidential Information to the extent compelled to do so pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by applicable law, Partner provides to Cloudera prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or, if prior notice is not permitted by applicable law, prompt notice of such disclosure; and provided further that Partner must limit the scope of Confidential Information that is disclosed to only that which is required to be disclosed by the applicable order or proceeding.

7. WARRANTY DISCLAIMER. THE LICENSED SOFTWARE IS PROVIDED “AS IS.” CLOUDERA DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE LICENSED SOFTWARE. CLOUDERA DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR ERRORS, OR THAT THE LICENSED SOFTWARE WILL MEET ANY OR ALL OF PARTNER’S BUSINESS REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDERA EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION, WARRANTY, OR COVENANT BASED ON COURSE OF DEALING OR USAGE IN TRADE.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL CLOUDERA BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES RELATED TO LOST REVENUE, LOST PROFITS, LOSS OF INCOME, OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, OR FOR ANY DAMAGES WHATSOEVER RELATING TO OR ARISING FROM DAMAGE TO, OR UNAVAILABILITY, CORRUPTION OR LOSS OF, DATA. CLOUDERA’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THE LICENSED SOFTWARE, PARTNER’S USE OF THE LICENSED SOFTWARE OR ANY OTHER MATTER ARISING UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED US $1,000.00. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. GENERAL PROVISIONS

9.1. Governing Law. This Agreement, and all disputes arising out of or related to this Agreement, will be governed by and construed under the laws of the State of California, without reference to conflict of laws principles. All such disputes will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. The parties acknowledge that breach of this Agreement may cause irreparable harm to Cloudera and that remedies at law may be insufficient. As such, in addition to any and all remedies available at law, Cloudera will be entitled to seek injunctive or other equitable relief in the event of any alleged or actual breach of the terms hereof.

9.2. Assignment. Partner may not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Cloudera. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

9.3. Compliance with Laws. Partner acknowledges that items provided hereunder are of United States origin, are provided subject to the U.S. Export Administration Regulations, and may be subject to other applicable national and international laws. Diversion or distribution contrary to applicable export control laws is prohibited. Partner represents that (i) it is not, and is not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Denied Entity List; and (ii) it will not permit items delivered under this Agreement to be used for any purposes prohibited by law, including, but not limited to, any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons. Additionally, Partner agrees that it will not engage in any illegal, unfair, deceptive, or unethical business practices whatsoever, including, but not limited to, any act that would constitute a violation of the U.S. Foreign Corrupt Practices Act. Compliance with any and all data protection or privacy laws that relate to Partner’s use of the Licensed Software will solely be Partner’s responsibility.

9.4. Entire Agreement; No Waiver; Severability. This Agreement is the entire agreement between the parties relating to the subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to such subject matter. No waiver or modification of this Agreement will be valid unless made in a writing signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law.

9.5. Notices. Legal notices to Cloudera under this Agreement must be sent by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Cloudera, Inc., 395 Page Mill Road, Palo Alto, CA 94306, Attn: Legal Department. Legal notices to Partner under this Agreement may be sent (i) by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Partner’s address as set forth on its website, to the attention of its General Counsel; or (ii) by email, with read receipt requested, to the email address provided by Partner as part of the registration for the Program or the registration and/or download process for the Licensed Software. Notices are effective five (5) days after posting if sent by registered or certified mail, upon confirmation of receipt if sent by overnight courier, or upon receipt by Cloudera of a read receipt if sent by email. Either party may change its address for notification under this Agreement, by notifying the other party in accordance with this Section 9.5.

CLOUDERA ONLINE SERVICES PARTNER DEVELOPMENT SUBSCRIPTION TERMS OF SERVICECLOUDERA ONLINE SERVICES

THESE PARTNER DEVELOPMENT SUBSCRIPTION TERMS OF SERVICE (THE “TERMS”) CONSTITUTE AN AGREEMENT BETWEEN THE COMPANY OR ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THESE TERMS (“PARTNER”) AND CLOUDERA, INC., AND ITS AFFILIATES (“CLOUDERA”) AND GOVERNS PARTNER’S ACCESS TO AND USE OF THE CLOUDERA ONLINE SERVICES TO WHICH PARTNER IS REQUESTING ACCESS.

BY ACCEPTING THESE TERMS (THE DATE OF SUCH ACCEPTANCE, THE “EFFECTIVE DATE”), PARTNER AGREES TO BE BOUND BY THESE TERMS. THE INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF PARTNER REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND PARTNER TO THESE TERMS. IF SUCH INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS, HE OR SHE MUST NOT ACCEPT THESE TERMS AND PARTNER MAY NOT USE THE SERVICES.

1. DEFINITIONS. The following capitalized terms have the meanings set forth below. Other terms may be defined in the context of their use elsewhere in these Terms.

1.1. “Account Data” has the meaning set forth in the Data Policy.

1.2. “Affiliate” means a legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights or controls or is under common control with such legal entity. For purposes of this definition, “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by management agreement, by contract, or otherwise. Any such entity will be considered an Affiliate only for such time as such interest or control is maintained.

1.3. "Applicable OSS License” means the open-source software license that applies to Cloudera Open-Source Software as indicated during the download process for such Cloudera Open-Source Software.

1.4. “Cloudera Open-Source Software” means software that is made available by Cloudera under the terms of Applicable OSS Licenses.

1.5. “Data Policy” means the Cloudera Data Policy available at https://www.cloudera.com/legal/policies.html, as may be updated by Cloudera from time to time. For purposes of these Terms, all references to “Customer” in the Data Policy are understood to be references to Partner.

1.6. “Documentation” means any technical documentation and usage guides for the Services, as may be updated from time to time by Cloudera, made available by Cloudera within the Services or otherwise on the Cloudera website.

1.7. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

1.8. “Partner Data” has the meaning assigned to “Customer Data” in the Data Policy. For purposes of these Terms, all references to “Customer Data” in the Data Policy are understood to be references to Partner Data.

1.9. “Partner Environment” means the computing environment (a) that, as between the parties, is procured, maintained, and managed by, and under the control of, Partner, and (b) into which Partner may deploy certain elements of the Services for purposes of facilitating Partner’s storage and processing of Partner Data.

1.10. “Privacy Statement” means the Cloudera Privacy Statement available at https://www.cloudera.com/legal/policies.html, as may be updated by Cloudera from time to time.

1.11. “Program” means the Cloudera Partner Network as described at: https://www.cloudera.com/.

1.12. “Services” means the specific Cloudera online services offering to which Partner has requested access under the Program. Services are provided by Cloudera as hosted, cloud-based services, accessible through a web browser.

1.13. “Subscription” means a Cloudera offering that provides Partner the right to access and use the Services in accordance with these Terms during the Subscription Term.

1.14. “Third-Party Software” means certain of the copyrighted, patented and/or otherwise legally protected software and/or material of third parties that is licensed to, sublicensed to, and/or otherwise distributed and/or made available by Cloudera to Partner.

1.15. “Transaction Data” has the meaning set forth in the Data Policy.

1.16. “User” means an employee or agent of Partner who is authorized by Partner to use the Services on Partner’s behalf.

2. CLOUDERA ONLINE SERVICES.

2.1. Access and Use. During the Subscription Term, Cloudera will provide Partner with a Subscription to the Services free of charge, as a benefit of Partner’s membership in the Program, and Partner and its Users may access and use the Services, subject to these Terms, in accordance with applicable Documentation, and solely for the purposes of (a) internal training; (b) developing Partner’s own products or items, such as connectors or accelerators, that permit or improve the interoperability of Partner’s own products with the Services (the “Partner Products”); (c) testing the Services for use with Partner Products; and (d) demonstrating the Services to potential end customers (the “Authorized Purpose”).

2.2. Restrictions. Partner agrees that it will not, nor will it permit or authorize any third party to (a) use the Services for production purposes; (b) make the Services available to anyone other than Users, or use the Services for the benefit of any third party, unless expressly agreed otherwise by Cloudera in writing; (c) use the Services in any manner that violates the Data Policy (including, without limitation, acceptable use requirements therein); (d) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include the Services in a service bureau, outsourcing, or hosted service offering; (e) modify, copy, or create derivative works based on the Services or any part, feature, function, or elements thereof; (f) frame or mirror any part of the Services; (g) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services; (h) access or use the Services or any portion thereof to build a competitive product or service; (i) access or use the Services for purposes of monitoring availability, performance or functionality of the Services, or for any benchmarking or competitive purposes; or (j) otherwise use the Services except as expressly permitted under these Terms.

2.3. Security; Data Policy and Privacy Statement.

2.3.1. Cloudera will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Partner’s Transaction Data and Account Data in accordance with the Data Policy.

2.3.2. The Data Policy and Privacy Statement apply to Partner’s use of the Services, and Partner agrees to comply with, and be bound by, the Data Policy and the Privacy Statement. All Transaction Data will be handled in accordance with, and governed by the terms of, the Data Policy.

2.4. Partner Responsibility for the Partner Environment. Partner acknowledges that the Services are implemented in a manner that allows Partner to deploy certain elements of the Services into a Partner Environment for purposes of facilitating Partner’s storage and processing of Partner Data. As between the parties, Partner is solely responsible for the implementation and maintenance of all technical and organizational measures related to the security, confidentiality, integrity, availability, and resiliency of both the Partner Environment and the Partner Data stored and processed by Partner within the Partner Environment. Partner expressly assumes the risks associated with the foregoing responsibilities. Cloudera is not responsible for, and has no liability whatsoever with regard to, (i) the Partner Environment, or (ii) any loss, destruction, alteration, disclosure of, access to, or corruption of Partner Data stored within the Partner Environment.

3. CLOUDERA OPEN-SOURCE SOFTWARE

3.1. Cloudera Open-Source Software. In connection with Partner’s Subscription to the Services, Cloudera may make certain Cloudera Open-Source Software available to Partner for download through the Services or other download location. Unless otherwise set forth in the applicable Order Terms, Cloudera Open-Source Software is licensed to Partner free of charge solely under the Applicable OSS License.

3.2. Cloudera Trademarks in Cloudera Open-Source Software. These Terms do not permit Partner to distribute Cloudera Open-Source Software or any of components thereof containing, displaying, or otherwise using Cloudera’s trademarks. The “Cloudera” trademark is any registered or unregistered trademark of Cloudera in various countries. Partner may redistribute Cloudera Open-Source Software that include Cloudera trademarks only if (a) permitted under a separate written license agreement with Cloudera authorizing such redistribution, or (b) Partner removes all occurrences of Cloudera trademarks and logos in such Cloudera Open-Source Software. Modifying Cloudera Open-Source Software may corrupt the Cloudera Open-Source Software.

3.3. Third-Party Software.

3.3.1. Notwithstanding anything to the contrary in these Terms, Partner acknowledges and agrees that (a) the Cloudera Open-Source Software contains Third-Party Software, and (b) its use is further subject to the terms of third-party licenses applicable to such Third-Party Software, which may be licensed to Partner directly from the applicable third party. Partner hereby acknowledges that Cloudera makes a list of Third-Party Software available to Partner (i) on Cloudera’s website, (ii) in the Cloudera Open-Source Software source code and/or the third-party notice file that accompanies the Cloudera Open-Source Software, and/or (iii) in another reasonable manner. Further, Partner hereby acknowledges that such third-party suppliers may disclaim and make no representation or warranty with respect to such Third-Party Software or any portion thereof, and assume no liability for any claim that may arise with respect to such Third-Party Software or Partner’s use or inability to use the same.

3.3.2. NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD-PARTY LICENSES, THESE TERMS OR ANY OTHER AGREEMENT PARTNER MAY HAVE WITH CLOUDERA, (A) CLOUDERA PROVIDES THIRD-PARTY SOFTWARE TO PARTNER AS-IS, WITHOUT WARRANTIES OF ANY KIND; (B) 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; (C) CLOUDERA IS NOT LIABLE TO PARTNER, AND WILL NOT DEFEND, INDEMNIFY, OR HOLD PARTNER HARMLESS FOR ANY CLAIMS ARISING FROM OR RELATED TO THIRD-PARTY SOFTWARE; AND (D) 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.

4. TERM; SUBSCRIPTIONS; TERMINATION.

4.1. Term. These Terms will commence on the Effective Date and will expire either (i) one year thereafter, or (ii) on the date that Partner’s membership in the Program terminates or expires, whichever is first to occur (such period, the “Subscription Term”), unless terminated earlier in accordance with this Section 4.

4.2. Termination. Either party may terminate these Terms immediately upon written notice to the other party if the other party is in material breach of any obligation under these Terms.

4.3. Effects of Termination. Upon any expiration or termination of these Terms, (a) Partner will immediately cease accessing and using the Services, and (b) each of Partner and Cloudera will promptly return to one another all of the other party’s Confidential Information then in its possession or destroy all copies of such Confidential Information; provided, however, that (i) each party may retain sufficient copies of such Confidential Information solely as may be required for compliance with internal backup policies or applicable law, and (ii) such retained Confidential Information remains subject to the requirements of Section 6. Each of Partner and Cloudera will immediately confirm in writing that it has complied with the foregoing terms of this Section 4.3 if requested by the other party. The following Sections will survive any expiration or termination of these Terms: 1, 3.2, 4.3, 5, 6, 7, 8, 9 and 10.

4.4. Suspension of Services. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in these Terms, Cloudera reserves the right to suspend provision of the Services to Partner (a) if Cloudera deems such suspension necessary as a result of Partner’s breach of Section 2 of these Terms, (b) if Cloudera reasonably determines suspension is necessary to avoid material harm to Cloudera or its customers, including if Cloudera Online Services are experiencing a denial of service attack or other attack or disruption outside of Cloudera’s control, or (c) as required by law or at the request of governmental entities.

5. PROPRIETARY RIGHTS.

5.1. Cloudera Proprietary Rights. Cloudera and its licensors and suppliers retain all right, title, and interest in and to (a) Cloudera Online Services including any and all underlying technology related thereto, (b) Documentation, (c) Cloudera Open-Source Software, (d) all Cloudera trademarks and logos included in any of the foregoing, and (e) any derivative works or modifications of any of the foregoing, including all Intellectual Property Rights therein and thereto (collectively, the “Cloudera Technology”). Except for the express rights set forth in these Terms, no right, title, or interest in or to any Cloudera Technology is granted to Partner.

5.2. Partner Proprietary Rights. As between the parties, Partner retains all right, title, and interest in and to its Account Data and Transaction Data, including any and all Intellectual Property Rights therein and thereto. Partner hereby grants to Cloudera a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display Account Data and Transaction Data solely as necessary to provide the Services to Partner and to otherwise perform its rights and obligations pursuant to these Terms and in accordance with the Data Policy. Except for the rights and licenses specified in these Terms, Cloudera acquires no right, title, or interest from Partner in or to Account Data or Transaction Data.

6. CONFIDENTIALITY.

6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed (whether in oral, written or other tangible or intangible form) by one party or its Affiliate (the “Disclosing Party”) to the other party or its Affiliate (the “Receiving Party”) (whether before, on or after the Effective Date) that (a) is characterized as Confidential Information at the time of disclosure or within a reasonable time after disclosure, or (b) 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. Any suggestions, comments, or other feedback that Partner provides to Cloudera specifically with respect to the Services (“Feedback”) will constitute Confidential Information of Cloudera. Cloudera will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

6.1.1. Confidential Information will not include information that (i) is in or enters the public domain without breach of these Terms and through no fault of the Receiving Party, (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party, (iii) 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, or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.

6.2. Treatment of Confidential Information. The Receiving Party will, during the Subscription Term and for three years thereafter, use the same degree of care to maintain the confidentiality of the Confidential Information of the Disclosing Party that it uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event less than reasonable 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.

6.3. Use; Disclosure. Any Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s rights and obligations under these Terms. In addition, the Receiving Party will not reproduce Confidential Information, in any form, except as required to accomplish the Receiving Party’s rights and obligations under these Terms. The Receiving Party may disclose Confidential Information to the extent compelled to do so pursuant to a judicial or legislative order or proceeding; provided that (a) to the extent permitted by applicable law, the Receiving Party provides to the Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure, or if prior notice is not permitted by applicable law, prompt notice of such disclosure, and (b) the Receiving Party must limit the scope of Confidential Information that is disclosed to only that which is required to be disclosed by the applicable order or proceeding.

6.4. Remedy for Breach. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 6. Therefore, each party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach of this Section 6 by the other party.

7. REPRESENTATIONS; WARRANTIES; DISCLAIMERS.

7.1. General Representations and Warranties. Each party warrants, as applicable, that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full power and authority to execute, deliver and perform its obligations under these Terms, (c) the person accepting or executing these Terms on its behalf is duly authorized and empowered to do so, and (iv) these Terms are valid, binding and enforceable against it.

7.2. Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND CLOUDERA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CLOUDERA DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CLOUDERA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY THIRD-PARTY OFFERINGS THAT PARTNER ELECTS TO USE IN CONNECTION WITH THE SERVICES. CLOUDERA DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. PARTNER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. INDEMNIFICATION. Subject to the terms of this Section 8, Partner agrees, at its own expense, to (a) defend Cloudera against any third-party claim, suit, or action brought against Cloudera arising from or related to Partner’s use of the Services in violation of applicable laws or in breach of these Terms (a “Claim”), and (b) indemnify Cloudera from any damages finally awarded against Cloudera to the third party making such Claim by a court of competent jurisdiction or agreed to in settlement with regard to any such Claim, including any awarded costs and awarded attorney’s fees. Cloudera agrees to (a) notify the Partner promptly in writing of the Claim, (b) grant Partner sole control over the defense and settlement of such claim, and (c) provide Partner with reasonable assistance and cooperation as may be requested by Partner at Partner’s expense. Partner may not settle or compromise a claim without the prior written consent of Cloudera if such settlement imposes an obligation on, or includes an admission of liability on the part of, the Cloudera.

9. LIMITATION OF LIABILITY. IN NO EVENT WILL CLOUDERA BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR USE OF DATA, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, PREVIEW SERVICES, PARTNER TRANSACTION DATA, OR PARTNER SAMPLE DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT WILL CLOUDERA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNT OF ONE THOUSAND UNITED STATES DOLLARS ($1,000.00 USD). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. GENERAL.

10.1. Diagnostics and Reporting. Partner acknowledges that the Services include diagnostic functionality as the default configuration. The diagnostic function collects configuration files, software versions, log files and other information regarding the Partner Environment and use of those elements of Cloudera Online Services that are deployed in the Partner Environment, and reports that information to Cloudera for use in proactively identifying potential issues with the Services, to enhance the usability of the Services, and for other internal Cloudera purposes. While Partner may elect to change the diagnostic function of the Services in order to disable regular automatic reporting, Partner agrees that, up to once per quarter, if requested by Cloudera, it will run the diagnostic function and report the results to Cloudera. For purposes of clarity, the diagnostic functionality described in this Section 10.1 does not include metering capabilities within the Services which Cloudera uses to determine Partner’s usage for billing purposes. Partner may not disable, tamper with, or otherwise alter any such metering capabilities within the Services.

10.2. Assignment. Neither these Terms nor any rights or duties thereunder may be transferred, assigned or delegated by Partner, by operation of law or otherwise, without the prior written consent of Cloudera, and any attempted transfer, assignment or delegation without such consent will be void and without effect; provided, however, that Partner may assign these Terms, including all of its rights and duties thereunder, to any of its Affiliates upon written notice to Cloudera if such Affiliate agrees in writing to assume all of Partner’s obligations, and such Affiliate is, in the sole judgment of Cloudera, adequately capitalized and credit-worthy. Cloudera may freely transfer, assign, or delegate these Terms or its rights and obligations thereunder. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

10.3. Section Headings. The section headings contained in these Terms are for reference purposes only and will not, in any way, affect the meaning or interpretation of these Terms.

10.4. Severability. If any provision of these Terms are held to be invalid or unenforceable, (a) all other provisions will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms are not affected in any manner adverse to either party, and (ii) the parties will negotiate in good faith to modify these Terms so as to give effect to the original intent of the parties as closely as possible.

10.5. Waiver. The failure of a party to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision or right and will not preclude such party from enforcing such provision or exercising such right at any later time.

10.6. Modifications; Amendments. Except as otherwise expressly set forth in these Terms, no modification, addition, deletion, or waiver of any rights under these Terms will be binding on a party unless made in writing and signed by a duly authorized representative of each party.

10.7. Governing Law; Jurisdiction and Venue. These Terms are governed by and will be construed in accordance with the laws of the State of California, without regard to conflict of law principles. Any legal action or proceeding arising under these Terms will be brought exclusively in the state or federal courts located in Santa Clara County, California, and the parties expressly consent to personal jurisdiction and venue therein.

10.8. Dispute Resolution; Attorneys’ Fees and Costs. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party.

10.9. Notices. Legal notices to Cloudera under these Terms must be sent by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Cloudera, Inc., 395 Page Mill Road, Palo Alto, CA 94306, Attn: Legal Department. Legal notices to Partner under these Terms may be sent (i) by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Partner’s address as set forth on its website, to the attention of its General Counsel; or (ii) by email, with read receipt requested, to the email address provided by Partner as part of its registration for the Program or the registration for the Services. Notices are effective five (5) days after posting if sent by registered or certified mail, upon confirmation of receipt if sent by overnight courier, or upon receipt by Cloudera of a read receipt if sent by email. Either party may change its address for notification under these Terms, by notifying the other party in accordance with this Section 10.9.

10.10. Entire Agreement. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. These Terms will prevail over any additional, conflicting, or inconsistent terms or conditions which may appear on any purchase order furnished by Partner, and any such terms on a Partner purchase order will have no force or effect, notwithstanding Cloudera’s acceptance or execution of such purchase order.

10.11. No Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.

10.12. Force Majeure. Neither party will be liable to the other, including for any delay or failure to perform, due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riots, strikes or labor disputes, embargoes, government orders, terrorist acts, and denial of service, virus, or hacking attacks.

10.13. Independent Contractors. The relationship between the parties established under these Terms is that of independent contractors, and nothing in These Terms will be construed to create an employment, partnership, joint venture, or agency relationship between the parties. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

10.14. Anti-Corruption. Each party 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. Each party acknowledges and agrees 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 or decisions (including failures to act or decide) in order to assist the other party in obtaining or retaining an improper business advantage. Each party will promptly notify the other party if it receives a request to take any action which may violate its obligations under this Section 10.14.

10.15. Export Control. The Services and Cloudera Open-Source Software may be subject to export laws and regulations of the United States and other jurisdictions. Partner agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Partner represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Partner will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) Partner will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

10.16. Federal Government End Use Provisions. If Partner is a United States government entity, or these Terms otherwise become subject to the Federal Acquisition Regulation (FAR), Partner acknowledges and agrees that the Services and all Cloudera Technology provided hereunder are provided as “commercial items,” “commercial computer software,” “commercial computer software documentation” and “technical data” (as such terms are defined in the FAR) with the same rights and restrictions as are customarily provided by Cloudera to its customers and Partners generally, as set forth in these Terms. This is in accordance with FAR 12.211 (Technical Data) and FAR 2.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation).

PARTNER DEVELOPMENT SUBSCRIPTION TERMS OF SERVICE

THESE PARTNER DEVELOPMENT SUBSCRIPTION TERMS OF SERVICE (THE “TERMS”) CONSTITUTE AN AGREEMENT BETWEEN THE COMPANY OR ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THESE TERMS (“PARTNER”) AND CLOUDERA, INC. AND ITS AFFILIATES (“CLOUDERA”) AND GOVERNS PARTNER’S ACCESS TO AND USE OF THE CLOUDERA ONLINE SERVICES TO WHICH PARTNER IS REQUESTING ACCESS.

1. DEFINITIONS. The following capitalized terms have the meanings set forth below. Other terms may be defined in the context of their use elsewhere in these Terms.

1.1 “Account Data” has the meaning set forth in the Data Policy.

1.2 “Affiliate” means a legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights or controls or is under common control with such legal entity. For purposes of this definition, “control” means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by management agreement, by contract, or otherwise. Any such entity will be considered an Affiliate only for such time as such interest or control is maintained.

1.3 "Applicable OSS License” means the open source software license that applies to Cloudera Open Source Software as indicated during the download process for such Cloudera Open Source Software.

1.4 “Cloudera Open Source Software” means software that is made available by Cloudera under the terms of Applicable OSS Licenses.

1.5 “Data Policy” means the Cloudera Data Policy available at https://www.cloudera.com/legal/policies.html, as may be updated by Cloudera from time to time. For purposes of these Terms, all references to “Customer” in the Data Policy are understood to be references to Partner.

1.6 “Documentation” means any technical documentation and usage guides for the Services, as may be updated from time to time by Cloudera, made available by Cloudera within the Services or otherwise on the Cloudera website.

1.7 “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

1.8 “Partner Data” has the meaning assigned to “Customer Data” in the Data Policy. For purposes of these Terms, all references to “Customer Data” in the Data Policy are understood to be references to Partner Data.

1.9 “Partner Environment” means the computing environment (a) that, as between the parties, is procured and maintained by, and under the control of, Partner, and (b) into which Partner may deploy certain elements of the Services for purposes of facilitating Partner’s storage and processing of Partner Data.

1.10 “Privacy Policy” means the Cloudera Privacy Policy available at https://www.cloudera.com/legal/policies.html, as may be updated by Cloudera from time to time.

1.11 “Program” means the Cloudera Partner Network as described at: https://www.cloudera.com/.

1.12 “Services” means the specific Cloudera online services offering to which Partner has requested access under the Program. Services are provided by Cloudera as hosted, cloud-based services, accessible through a web browser.

1.13 “Subscription” means a Cloudera offering that provides Partner the right to access and use the Services in accordance with these Terms during the Subscription Term.

1.14 “Third Party Software” means certain of the copyrighted, patented and/or otherwise legally protected software and/or material of third parties that is licensed to, sublicensed to, and/or otherwise distributed and/or made available by Cloudera to Partner.

1.15 “Transaction Data” has the meaning set forth in the Data Policy.

1.16 “User” means an employee or agent of Partner who is authorized by Partner to use the Services on Partner’s behalf.

2. CLOUDERA ONLINE SERVICES.

2.1 Access and Use. During the Subscription Term, Cloudera will provide Partner with a Subscription to the Services free of charge, as a benefit of Partner’s membership in the Program, and Partner and its Users may access and use the Services, subject to these Terms, in accordance with applicable Documentation, and solely for the purposes of (a) internal training; (b) developing Partner’s own products or items, such as connectors or accelerators, that permit or improve the interoperability of Partner’s own products with the Services (the “Partner Products”); (c) testing the Services for use with Partner Products; and (d) demonstrating the Services to potential end customers (the “Authorized Purpose”).

2.2 Restrictions. Partner agrees that it will not, nor will it permit or authorize any third party to (a) use the Services for production purposes; (b) make the Services available to anyone other than Users, or use the Services for the benefit of any third party, unless expressly agreed otherwise by Cloudera in writing; (c) use the Services in any manner that violates the Data Policy (including, without limitation, acceptable use requirements therein); (d) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include the Services in a service bureau, outsourcing, or hosted service offering; (e) modify, copy, or create derivative works based on the Services or any part, feature, function, or elements thereof; (f) frame or mirror any part of the Services; (g) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services; (h) access or use the Services or any portion thereof to build a competitive product or service; (i) access or use the Services for purposes of monitoring availability, performance or functionality of the Services, or for any benchmarking or competitive purposes; or (j) otherwise use the Services except as expressly permitted under these Terms.

2.3 Security; Data Policy and Privacy Policy.

2.3.1 Cloudera will maintain commercially reasonable administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Partner’s Transaction Data and Account Data in accordance with the Data Policy.

2.3.2 The Data Policy and Privacy Policy apply to Partner’s use of the Services, and Partner agrees to comply with, and be bound by, the Data Policy and the Privacy Policy. All Transaction Data will be handled in accordance with, and governed by the terms of, the Data Policy. Subject to applicable law, in connection with Partner’s use of the Services (a) Cloudera agrees that it will not require Partner to deliver to Cloudera any “Personal Data” as defined by the EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 – General Data Protection Regulation, and (b) Partner agrees not to deliver any Personal Data to Cloudera; provided, however, that with regard to Account Data, Cloudera may request and Partner may provide certain limited Personal Data incident to Cloudera’s provision of the Services, and such Account Data will be governed by the Data Policy. To the extent that Cloudera processes any Personal Data as a data processor on behalf of Partner, the terms of the Data Protection Addendum referenced in the Privacy Policy will apply.

2.4 Partner Responsibility for the Partner Environment. Partner acknowledges that the Services are implemented in a manner that allows Partner to deploy certain elements of the Services into a Partner Environment for purposes of facilitating Partner’s storage and processing of Partner Data. As between the parties, Partner is solely responsible for (a) all technical and organizational measures related to the security and integrity of the Partner Environment, and (b) securing and backing up Partner Data stored and processed by Partner within the Partner Environment. Partner expressly assumes the risks associated with the foregoing responsibilities. Cloudera is not responsible for, and has no liability whatsoever with regard to, (i) the Partner Environment, or (ii) any loss, destruction, alteration, or corruption of Partner Data stored within the Partner Environment.

3. CLOUDERA OPEN SOURCE SOFTWARE

3.1 Cloudera Open Source Software. In connection with Partner’s Subscription to the Services, Cloudera may make certain Cloudera Open Source Software available to Partner for download through the Services or other download location. Unless otherwise set forth in the applicable Order Terms, Cloudera Open Source Software is licensed to Partner free of charge solely under the Applicable OSS License.

3.2 Cloudera Trademarks in Cloudera Open Source Software. These Terms do not permit Partner to distribute Cloudera Open Source Software or any of components thereof containing, displaying or otherwise using Cloudera’s trademarks. The “Cloudera” trademark is any registered or unregistered trademark of Cloudera in various countries. Partner may redistribute Cloudera Open Source Software that include Cloudera trademarks only if (a) permitted under a separate written license agreement with Cloudera authorizing such redistribution, or (b) Partner removes all occurrences of Cloudera trademarks and logos in such Cloudera Open Source Software. Modifying Cloudera Open Source Software may corrupt the Cloudera Open Source Software.

3.3 Third Party Software.

3.3.1 Notwithstanding anything to the contrary in these Terms, Partner acknowledges and agrees that (a) the Cloudera Open Source Software contains Third Party Software, and (b) its use is further subject to the terms of third party licenses applicable to such Third Party Software, which may be licensed to Partner directly from the applicable third party. Partner hereby acknowledges that Cloudera makes a list of Third Party Software available to Partner (i) on Cloudera’s website, (ii) in the Cloudera Open Source Software source code and/or the third party notice file that accompanies the Cloudera Open Source Software, and/or (iii) in another reasonable manner. Further, Partner hereby acknowledges that such third party suppliers may disclaim and make no representation or warranty with respect to such Third Party Software or any portion thereof, and assume no liability for any claim that may arise with respect to such Third Party Software or Partner’s use or inability to use the same.

3.3.2 NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD PARTY LICENSES, THESE TERMS OR ANY OTHER AGREEMENT PARTNER MAY HAVE WITH CLOUDERA, (A) CLOUDERA PROVIDES THIRD PARTY SOFTWARE TO PARTNER AS-IS, WITHOUT WARRANTIES OF ANY KIND; (B) 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; (C) CLOUDERA IS NOT LIABLE TO PARTNER, AND WILL NOT DEFEND, INDEMNIFY, OR HOLD PARTNER HARMLESS FOR ANY CLAIMS ARISING FROM OR RELATED TO THIRD PARTY SOFTWARE; AND (D) 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.

4. TERM; SUBSCRIPTIONS; TERMINATION.

4.1 Term. These Terms will commence on the Effective Date and will expire either (i) one year thereafter, or (ii) on the date that Partner’s membership in the Program terminates or expires, whichever is first to occur (such period, the “Subscription Term”), unless terminated earlier in accordance with this Section 4.

4.2 Termination. Either party may terminate these Terms immediately upon written notice to the other party if the other party is in material breach of any obligation under these Terms.

4.3 Effects of Termination. Upon any expiration or termination of these Terms, (a) Partner will immediately cease accessing and using the Services, and (b) each of Partner and Cloudera will promptly return to one another all of the other party’s Confidential Information then in its possession or destroy all copies of such Confidential Information; provided, however, that (i) each party may retain sufficient copies of such Confidential Information solely as may be required for compliance with internal backup policies or applicable law, and (ii) such retained Confidential Information remains subject to the requirements of Section 6. Each of Partner and Cloudera will immediately confirm in writing that it has complied with the foregoing terms of this Section 4.3 if requested by the other party. The following Sections will survive any expiration or termination of these Terms: 1, 3.2, 4.3, 5, 6, 7, 8, 9 and 10.

4.4 Suspension of Services. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in these Terms, Cloudera reserves the right to suspend provision of the Services to Partner (a) if Cloudera deems such suspension necessary as a result of Partner’s breach of Section 2 of these Terms, (b) if Cloudera reasonably determines suspension is necessary to avoid material harm to Cloudera or its customers, including if Cloudera Online Services are experiencing a denial of service attack or other attack or disruption outside of Cloudera’s control, or (c) as required by law or at the request of governmental entities.

5. PROPRIETARY RIGHTS.

5.1 Cloudera Proprietary Rights. Cloudera and its licensors and suppliers retain all right, title and interest in and to (a) Cloudera Online Services including any and all underlying technology related thereto, (b) Documentation, (c) Cloudera Open Source Software, (d) all Cloudera trademarks and logos included in any of the foregoing, and (e) any derivative works or modifications of any of the foregoing, including all Intellectual Property Rights therein and thereto (collectively, the “Cloudera Technology”). Except for the express rights set forth in these Terms, no right, title or interest in or to any Cloudera Technology is granted to Partner.

5.2 Partner Proprietary Rights. As between the parties, Partner retains all right, title and interest in and to its Account Data and Transaction Data, including any and all Intellectual Property Rights therein and thereto. Partner hereby grants to Cloudera a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display Account Data and Transaction Data solely as necessary to provide the Services to Partner and to otherwise perform its rights and obligations pursuant to these Terms and in accordance with the Data Policy. Except for the rights and licenses specified in these Terms, Cloudera acquires no right, title or interest from Partner in or to Account Data or Transaction Data.

6. CONFIDENTIALITY.

6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed (whether in oral, written or other tangible or intangible form) by one party or its Affiliate (the “Disclosing Party”) to the other party or its Affiliate (the “Receiving Party”) (whether before, on or after the Effective Date) that (a) is characterized as Confidential Information at the time of disclosure or within a reasonable time after disclosure, or (b) 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. Any suggestions, comments or other feedback that Partner provides to Cloudera specifically with respect to the Services (“Feedback”) will constitute Confidential Information of Cloudera. Cloudera will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

6.2 Confidential Information will not include information that (i) is in or enters the public domain without breach of these Terms and through no fault of the Receiving Party, (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party, (iii) 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, or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.

6.3 Treatment of Confidential Information. The Receiving Party will, during the Subscription Term and for three years thereafter, use the same degree of care to maintain the confidentiality of the Confidential Information of the Disclosing Party that it uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event less than reasonable 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.

6.4 Use; Disclosure. Any Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s rights and obligations under these Terms. In addition, the Receiving Party will not reproduce Confidential Information, in any form, except as required to accomplish the Receiving Party’s rights and obligations under these Terms. The Receiving Party may disclose Confidential Information to the extent compelled to do so pursuant to a judicial or legislative order or proceeding; provided that (a) to the extent permitted by applicable law, the Receiving Party provides to the Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure, or if prior notice is not permitted by applicable law, prompt notice of such disclosure, and (b) the Receiving Party must limit the scope of Confidential Information that is disclosed to only that which is required to be disclosed by the applicable order or proceeding.

6.5 Remedy for Breach. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 6. Therefore, each party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach of this Section 6 by the other party.

7. REPRESENTATIONS; WARRANTIES; DISCLAIMERS.

7.1 General Representations and Warranties. Each party warrants, as applicable, that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full power and authority to execute, deliver and perform its obligations under these Terms, (c) the person accepting or executing these Terms on its behalf is duly authorized and empowered to do so, and (iv) these Terms are valid, binding and enforceable against it.

7.2 Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND CLOUDERA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CLOUDERA DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CLOUDERA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY THIRD-PARTY OFFERINGS THAT PARTNER ELECTS TO USE IN CONNECTION WITH THE SERVICES. CLOUDERA DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. PARTNER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

8. INDEMNIFICATION. Subject to the terms of this Section 8, Partner agrees, at its own expense, to (a) defend Cloudera against any third party claim, suit, or action brought against Cloudera arising from or related to Partner’s use of the Services in violation of applicable laws or in breach of these Terms (a “Claim”), and (b) indemnify Cloudera from any damages finally awarded against Cloudera to the third party making such Claim by a court of competent jurisdiction or agreed to in settlement with regard to any such Claim, including any awarded costs and awarded attorney’s fees. Cloudera agrees to (a) notify the Partner promptly in writing of the Claim, (b) grant Partner sole control over the defense and settlement of such claim, and (c) provide Partner with reasonable assistance and cooperation as may be requested by Partner at Partner’s expense. Partner may not settle or compromise a claim without the prior written consent of Cloudera if such settlement imposes an obligation on, or includes an admission of liability on the part of, the Cloudera.

10. GENERAL.

10.1 Diagnostics and Reporting. Partner acknowledges that the Services include diagnostic functionality as the default configuration. The diagnostic function collects configuration files, software versions, log files and other information regarding the Partner Environment and use of those elements of Cloudera Online Services that are deployed in the Partner Environment, and reports that information to Cloudera for use in proactively identifying potential issues with the Services, to enhance the usability of the Services, and for other internal Cloudera purposes. While Partner may elect to change the diagnostic function of the Services in order to disable regular automatic reporting, Partner agrees that, up to once per quarter, if requested by Cloudera, it will run the diagnostic function and report the results to Cloudera. For purposes of clarity, the diagnostic functionality described in this Section 10.1 does not include metering capabilities within the Services which Cloudera uses to determine Partner’s usage for billing purposes. Partner may not disable, tamper with or otherwise alter any such metering capabilities within the Services.

10.2 Assignment. Neither these Terms nor any rights or duties thereunder may be transferred, assigned or delegated by Partner, by operation of law or otherwise, without the prior written consent of Cloudera, and any attempted transfer, assignment or delegation without such consent will be void and without effect; provided, however, that Partner may assign these Terms, including all of its rights and duties thereunder, to any of its Affiliates upon written notice to Cloudera if such Affiliate agrees in writing to assume all of Partner’s obligations, and such Affiliate is, in the sole judgment of Cloudera, adequately capitalized and credit-worthy. Cloudera may freely transfer, assign or delegate these Terms or its rights and obligations thereunder. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

10.3 Section Headings. The section headings contained in these Terms are for reference purposes only and will not, in any way, affect the meaning or interpretation of these Terms.

10.4 Severability. If any provision of these Terms are held to be invalid or unenforceable, (a) all other provisions will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms are not affected in any manner adverse to either party, and (ii) the parties will negotiate in good faith to modify these Terms so as to give effect to the original intent of the parties as closely as possible.

10.5 Waiver. The failure of a party to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision or right and will not preclude such party from enforcing such provision or exercising such right at any later time.

10.6 Modifications; Amendments. Except as otherwise expressly set forth in these Terms, no modification, addition, deletion or waiver of any rights under these Terms will be binding on a party unless made in writing and signed by a duly authorized representative of each party.

10.7 Governing Law; Jurisdiction and Venue. These Terms are governed by and will be construed in accordance with the laws of the State of California, without regard to conflict of law principles. Any legal action or proceeding arising under these Terms will be brought exclusively in the state or federal courts located in Santa Clara County, California, and the parties expressly consent to personal jurisdiction and venue therein.

10.8 Dispute Resolution; Attorneys’ Fees and Costs. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party.

10.9 Notices. Legal notices to Cloudera under these Terms must be sent by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Cloudera, Inc., 395 Page Mill Road, Palo Alto, CA 94306, Attn: Legal Department. Legal notices to Partner under these Terms may be sent (i) by registered or certified mail, return receipt requested, or via reputable overnight air courier addressed to Partner’s address as set forth on its website, to the attention of its General Counsel; or (ii) by email, with read receipt requested, to the email address provided by Partner as part of its registration for the Program or the registration for the Services. Notices are effective five (5) days after posting if sent by registered or certified mail, upon confirmation of receipt if sent by overnight courier, or upon receipt by Cloudera of a read receipt if sent by email. Either party may change its address for notification under these Terms, by notifying the other party in accordance with this Section 10.9.

10.10 Entire Agreement. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. These Terms will prevail over any additional, conflicting or inconsistent terms or conditions which may appear on any purchase order furnished by Partner, and any such terms on a Partner purchase order will have no force or effect, notwithstanding Cloudera’s acceptance or execution of such purchase order.

10.11 No Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.

10.12 Force Majeure. Neither party will be liable to the other, including for any delay or failure to perform, due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riots, strikes or labor disputes, embargoes, government orders, terrorist acts, and denial of service, virus or hacking attacks.

10.13 Independent Contractors. The relationship between the parties established under these Terms is that of independent contractors, and nothing in These Terms will be construed to create an employment, partnership, joint venture, or agency relationship between the parties. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

10.14 Anti-Corruption. Each party 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. Each party acknowledges and agrees 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 or decisions (including failures to act or decide) in order to assist the other party in obtaining or retaining an improper business advantage. Each party will promptly notify the other party if it receives a request to take any action which may violate its obligations under this Section 10.14.

10.15 Export Control. The Services and Cloudera Open Source Software may be subject to export laws and regulations of the United States and other jurisdictions. Partner agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (a) Partner represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) Partner will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) Partner will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

10.16 Federal Government End Use Provisions. If Partner is a United States government entity, or these Terms otherwise become subject to the Federal Acquisition Regulation (FAR), Partner acknowledges and agrees that the Services and all Cloudera Technology provided hereunder are provided as “commercial items,” “commercial computer software,” “commercial computer software documentation” and “technical data” (as such terms are defined in the FAR) with the same rights and restrictions as are customarily provided by Cloudera to its customers and Partners generally, as set forth in these Terms. This is in accordance with FAR 12.211 (Technical Data) and FAR 2.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation).

Misa Amane

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