Cloudera Online 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  “Agreement” means, with respect to any Order Terms, collectively the Order Terms and these Terms.

1.4 "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.

1.5  “Authorized Partner” means a reseller or distributor authorized by Cloudera to resell Cloudera offerings.

1.6  “Authorized Partner Order Details” means, in the case that Customer purchases a Subscription through an Authorized Partner, the following information as documented between the Authorized Partner and Cloudera: (a) Customer name and contact information; (b) the specific Cloudera Online Services Subscription purchased by Customer; (c) any applicable quantities and/or usage limitations related to the purchased Subscription; and (d)  other terms that apply to such Subscription.

1.7  “Authorized Partner Transaction” means a transaction: (a) pursuant to which Customer has purchased a Subscription through an Authorized Partner; and (b) for which Cloudera will provide such Subscription to Customer in accordance with the Authorized Partner Order Details.

1.8  “Cloudera Online Services” means the Cloudera online data platform services offerings provided as hosted, cloud-based services, accessible through a web browser.

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

1.10  “Cloudera Portal” means the Cloudera web site through which Cloudera provides access to the Services.

1.11  “Customer Data” has the meaning set forth in the Data Policy.

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

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

1.14  “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 Cloudera Portal or otherwise on the Cloudera website. 

1.15  “Free Trial Services” means a trial offering of Cloudera Online Services provided by Cloudera free of charge for the purpose of enabling evaluation of Cloudera Online Services prior to potential purchase of a Subscription. 

1.16  “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.

1.17  “Order Form” means: (a) an ordering document entered into between Cloudera and Customer that references these Terms; or (b) a Registration Form that has been completed and submitted by Customer through the Cloudera Portal.

1.18  “Order Form Effective Date” means: (a) with respect to an ordering document entered into by Cloudera and Customer, the date on which such ordering document is executed; and (b) with respect to a Registration Form, the date on which Customer submits the completed Registration Form through the Cloudera Portal.

1.19  “Order Terms” means: (a) if Customer procures Subscriptions directly from Cloudera, the terms of the applicable Order Form; or (b) if Customer procures Subscriptions through an Authorized Partner, the Authorized Partner Order Details.

1.20  “Policies” means, collectively, the Data Policy, the Privacy Policy, the Pricing and Billing Terms (as defined in Section 6.1), and any other policy or terms referenced in, or incorporated into, these Terms.  

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

1.22   “Registration Form” means a page or form on the Cloudera Portal through which Cloudera offers the ability to register for, and procure access to, Cloudera Online Services.

1.23  “Sample Data” means any sample data that may be provided by Cloudera for use with Free Trial Services, including without limitation, in a Cloudera Sample VPC.

1.24  “Sample VPC” means a virtual private cloud environment procured by Cloudera from a third-party public cloud vendor that is pre-configured by Cloudera and that may be made accessible by Cloudera to Customer for use with Free Trial Services.

1.25  “Services” means the specific Cloudera Online Services for which Customer has purchased, or registered for, a Subscription, as set forth in applicable Order Terms.

1.26  “Subscription” means a Cloudera offering that provides Customer the right to access and use the Services during the Subscription Period.

1.27  “Subscription Period” means the period during which Customer is entitled to a Subscription.  The length of Subscription Periods and terms regarding the renewal of Subscription Periods are set forth in Section 7.2.

1.28  “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 Customer.

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

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

2.  CLOUDERA ONLINE SERVICES.

2.1  Access and Use. Cloudera will make the Services available to Customer, and Customer and its Users may access and use the Services, during the Subscription Period, solely for Customer’s internal business purposes subject to the terms of the Agreement and in accordance with applicable Documentation.

2.2  Restrictions. Customer may not: (a) make the Services available to anyone other than Users, or use the Services for the benefit of anyone other than Customer or its Affiliates, unless expressly agreed otherwise by Cloudera in writing; (b) use the Services in any manner that violates the Data Policy (including, without limitation, acceptable use requirements therein); (c) 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; (d) modify, copy, or create derivative works based on the Services or any part, feature, function, or elements thereof; (e) frame or mirror any part of the Services; (f) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services; (g) access or use the Services or any portion thereof to build a competitive product or service;  (h) access or use the Services for purposes of monitoring availability, performance or functionality of the Services, or for any benchmarking or competitive purposes; (i) use the Services as part of any application controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar high-risk scenario; or (j) otherwise use the Services except as expressly permitted under the Agreement.

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 Customer’s Transaction Data and Account Data in accordance with the Data Policy.

2.3.2.  The Data Policy and Privacy Policy apply to Customer’s use of the Services, and Customer 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 Customer’s use of the Services: (a) Cloudera agrees that it will not require Customer 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) Customer agrees not to deliver any Personal Data to Cloudera; provided, however, that with regard to  Account Data, Cloudera may request and Customer 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 Customer, the terms of the Data Protection Addendum referenced in the Privacy Policy will apply.

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

3.  CLOUDERA OPEN SOURCE SOFTWARE

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

3.2   Cloudera Trademarks in Cloudera Open Source Software. The Agreement does not permit Customer 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.  Customer 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) Customer 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 any terms to the contrary in the Agreement, Customer acknowledges and agrees that: (a) the Cloudera Open Source Software contains Third Party Software; and (b) in addition to the terms of the Agreement, its use is further subject to the terms of third party licenses applicable to such Third Party Software, which may be licensed to Customer directly from the applicable third party. Customer hereby acknowledges that Cloudera makes a list of Third-Party Software available to Customer: (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, Customer 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 Customer’s use or inability to use the same.

3.3.2.  NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD PARTY LICENSES, THE AGREEMENT OR ANY OTHER AGREEMENT CUSTOMER MAY HAVE WITH CLOUDERA: (A) CLOUDERA PROVIDES THIRD PARTY SOFTWARE TO CUSTOMER 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 CUSTOMER, AND WILL NOT DEFEND, INDEMNIFY, OR HOLD CUSTOMER 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.  FREE TRIAL SERVICES; SAMPLE VPCS AND SAMPLE DATA.

4.1  Subscription to Free Trial Services.  If Customer submits a completed Order Form for Free Trial Services, Cloudera will make the Services available to Customer on a trial basis free of charge beginning on the date that Customer submits such Registration Form until: (a) the end of the Subscription Period as set forth in the Registration Form, or if none is specified in the Registration Form, then 30 days from the date of Customer’s submission of the Registration Form; or (b) termination of the Free Trial Services by Cloudera in its sole discretion (the “Trial Subscription Period”).  Cloudera may, in its sole discretion, extend the Trial Subscription Period by continuing to provide Customer with access to the Free Trial Services.  Any such extension will be considered part of the Trial Subscription Period.  Additionally, Cloudera may, in its sole discretion, provide Customer with free trial access to the Services without the requirement that Customer complete an Order Form.  Such Services will, nonetheless, be treated as Free Trial Services  under these Terms, and, in such case, the applicable “Trial Subscription Period” will be the period beginning on the date when Cloudera first provides Customer with access to the Services and ending on the date on which Cloudera notifies Customer that the Trial Subscription Period is ending.  With regard to Free Trial Services, Customer may access and use the Services during the Trial Subscription Period solely for the purposes of internal evaluation and to facilitate Customer’s decision with regard to purchasing a Subscription to Cloudera Online Services.

4.2  Sample VPCs and Sample Data. Cloudera may make Sample VPCs and Sample Data available to Customer to facilitate Customer’s trial and evaluation of the Services, and Customer may access and use such Sample VPCs and Sample Data, solely for such purpose.

4.3  DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR FREE TRIAL SERVICES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE TERMS OF SECTION 10.2 (SERVICES WARRANTY) AND SECTION 11.1 (INDEMNIFICATION BY CLOUDERA): (A) FREE TRIAL SERVICES, SAMPLE VPCS AND SAMPLE DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) CLOUDERA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO FREE TRIAL SERVICES, SAMPLE VPCS OR SAMPLE DATA; AND (C) CLOUDERA HAS NO INDEMNIFICATION OBLIGATIONS WHATSOEVER WITH REGARD TO FREE TRIAL SERVICES, SAMPLE VPCS OR SAMPLE DATA.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDERA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES WITH REGARD TO FREE TRIAL SERVICES, SAMPLE VPCS AND SAMPLE DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.  CLOUDERA DOES NOT WARRANT THAT FREE TRIAL SERVICES, SAMPLE VPCS OR SAMPLE DATA ARE OR WILL BE ERROR-FREE OR UNINTERRUPTED, WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL BE TIMELY OR SECURE. IN NO EVENT WILL CLOUDERA BE LIABLE TO CUSTOMER 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 FREE TRIAL SERVICES, SAMPLE VPCS OR 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 FREE TRIAL SERVICES, SAMPLE VPCS OR SAMPLE DATA EXCEED THE AMOUNT OF ONE THOUSAND UNITED STATES DOLLARS ($1,000.00 USD). 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.

5.  CLOUDERA DATA PLATFORM PUBLIC CLOUD PROOF OF CONCEPT. 

5.1   POC Terms and Conditions. The Cloudera Data Platform Public Cloud Proof of Concept (“CDP Public Cloud POC”) is considered a Free Trial Services offering of Cloudera Online Services.  The CDP Public Cloud POC offering is governed by the terms that apply to Free Trial Services as provided in Section 4 of these Terms (see Section 4 above), except that in connection with the CDP Public Cloud POC, Customer will be using Customer Data in a Customer Environment, such that the terms and conditions in these Terms that apply to Customer Data and/or a Customer Environment shall apply to the CDP Public Cloud POC (for avoidance of doubt, the CDP Public Cloud POC shall not involve Sample Data or use of a Sample VPC.  Any Cloudera program that provides free usage of Cloudera Data Platform Public Cloud, regardless of whether such program is referred to as an ‘evaluation,’ ‘trial,’ ‘proof of concept,’ or similar term, shall be considered a CDP Public Cloud POC and subject to these Terms.   

5.2   POC Subscription Period.  Upon acceptance of these Terms and submission of a Registration Form associated with the CDP Public Cloud POC, Cloudera will make the Free Trial Services associated with the CDP Public Cloud POC available to Customer free of charge on a trial basis beginning on the date that Customer submits such Registration Form for a period of sixty (60) days (the “POC Subscription Period”).  Cloudera may, in its sole discretion, agree in writing with Customer to extend the POC Subscription Period.  Any such extension will be considered part of the POC Subscription Period.  Cloudera also reserves the right, in its sole discretion, to terminate the CDP Public Cloud POC at any time. 

6.              PRICING AND BILLING; PAYMENT TERMS; TAXES.

6.1  Pricing and Billing. Pricing and billing terms for Cloudera Online Services are available at: https://www.cloudera.com/legal/terms-and-conditions/cloud-usage-pricing-terms.html,  as such page may be updated by Cloudera from time to time (the “Pricing and Billing Terms”).  Unless otherwise agreed by the parties in writing, Customer agrees to pay all fees due to Cloudera in accordance with the Pricing and Billing Terms.

6.2  Payment of Terms. Customer agrees to pay invoices for fees due to Cloudera within thirty (30) days of the date of invoice, without setoff or counterclaim, and without any deduction or withholding. Cloudera may elect to charge Customer interest at a rate of 1.5% per month or the highest rate permitted by law, whichever is lower, on all late payments. Except as expressly set forth in the Agreement, all payment obligations are non-cancelable, and fees are non-refundable.

6.3  Taxes.  Fees charged by Cloudera do not include taxes. Customer will pay any and all sales, use, excise, import, export, value added, GST or similar taxes (“Transaction Taxes”) and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the sale of Subscriptions, exclusive of income taxes based on Cloudera’s net income. Customer will pay any costs associated with the collection of Transaction Taxes, including penalties and interest.  If Customer is required to pay any withholding tax, charge or levy with respect to payments to Cloudera (“Withholding Taxes”), Customer agrees to gross up payments actually made to Cloudera such that Cloudera receives sums due in full and free of any deduction of any such Withholding Taxes, subject to Cloudera providing documentation to support the lowest legal withholding rate under any applicable double tax treaty. Cloudera will cooperate with Customer to enable Customer to pay the lowest legal withholding rate by providing any available tax documents in its possession to support the lowest applicable withholding rate. Under current United States income tax laws, Cloudera cannot receive any tax benefits or credits for tax amounts withheld by Customer.

7.  TERM; SUBSCRIPTIONS; TERMINATION.

7.1  Term. These Terms will commence on the Effective Date and will continue until all Subscriptions hereunder have expired or have been terminated in accordance with this Section 7.

7.2  Subscriptions and Renewals. The Services are made available to Customer on a subscription basis.  The Subscription Period for each Subscription is a one-month term that: (a) begins on (i) the Order Form Effective Date, unless otherwise agreed by the parties, or (ii) in the case that Customer purchases through an Authorized Partner, the Subscription start date as specified in the Authorized Partner Order Details; and (b) except with respect to Trial Subscription Periods, and unless otherwise set forth in the applicable Order Terms, will automatically renew for additional periods of one month each until terminated in accordance with this Section 7.   

7.3  Termination.

7.3.1.  Termination For Cause. Either party may terminate these Terms, including all Subscriptions governed by these Terms for cause: (a) if the other party materially breaches these Terms or Order Terms and does not remedy such breach within thirty (30) days after receipt of written notice of such breach; or (b) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.  Either party may terminate an individual Subscription if the other party materially breaches the applicable Order Terms or these Terms, in respect of such Subscription, and does not cure the breach within thirty (30) days after receipt of written notice thereof.

7.3.2.  Termination for Convenience. Either party may terminate a Subscription for convenience upon thirty (30) days prior written notice to the other party. In the case of termination for convenience by Customer, (i) Cloudera reserves the right to invoice Customer for any future payments included in an Order Form, and (ii) Customer will not be entitled to a refund of any pre-paid and unused fees paid to Cloudera related to the Services. In the case of termination for convenience by Cloudera, and in the case that Customer has pre-paid unused fees related to the Services remaining on the effective date of such termination, Cloudera will refund any such pre-paid unused fees to Customer.

7.4  Effects of Termination. Termination of an individual Subscription will not affect any other Subscription or these Terms, except with respect to such terminated Subscription.  Upon expiration or termination of all Subscriptions hereunder, these Terms will automatically terminate.  Upon any expiration or termination of a Subscription, Customer will immediately cease accessing or using the Services covered under Subscription.  Upon any termination of these Terms: (a) Customer will immediately cease accessing and using all Services provided under Subscriptions covered under these Terms; and (b) each of Customer 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 9. Each of Customer and Cloudera will immediately confirm in writing that it has complied with the foregoing terms of this Section 7.4 if requested by the other party.  The following Sections will survive any expiration or termination of this Agreement: 1, 2.4, 3.2, 3.3, 4.3, 6, 7.3.2, 7.4, 8, 9, 10.3, 11.2, 12 and 13.

7.5  Suspension of Services. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in the Agreement, Cloudera reserves the right to suspend provision of the Services to Customer: (a) if Customer is more than thirty (30) days overdue on payment of fees; (b) if Cloudera deems such suspension necessary as a result of Customer’s breach of Section 2 of these Terms; (c) 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 (d) as required by law or at the request of governmental entities.

8. PROPRIETARY RIGHTS.

8.1  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) Sample VPCs; (d) Sample Data; (e) Cloudera Open Source Software; (f) all Cloudera trademarks and logos included in any of the foregoing, and (g) 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 Customer.

8.2  Feedback. Customer may, in its sole discretion, provide Cloudera with suggestions, enhancement requests, recommendations, or other feedback related to Cloudera Technology (“Feedback”). Customer hereby assigns to Cloudera all right, title, and interest in and to any Feedback, including all Intellectual Property Rights therein and thereto.

8.3  Customer Proprietary Rights.  As between the parties, Customer 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. Customer 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 Customer and to otherwise perform its rights and obligations pursuant to the Agreement and in accordance with the Data Policy. Except for the rights and licenses specified in the Agreement, Cloudera acquires no right, title or interest from Customer in or to Account Data or Transaction Data.

9.  CONFIDENTIALITY.

9.1  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. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement 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.

9.2  Treatment of Confidential Information. The Receiving Party will, during the term of the Agreement 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.

9.3   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 the Agreement. 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 the Agreement. 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.

9.4  Remedy for Breach. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 9. 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 9 by the other party.

10.   REPRESENTATIONS; WARRANTIES; DISCLAIMERS.

10.1  General Representations and Warranties. Each party warrants 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 the Agreement; (c) the person accepting or executing these Terms (or an Order Form that is subject to these Terms) on its behalf is duly authorized and empowered to do so; and (iv) these Terms are valid, binding and enforceable against it.

10.2  Services Warranty. Cloudera warrants that the Services will operate in substantial conformity with its applicable Documentation. In the event of a breach of this warranty, and provided that Customer notifies Cloudera of its claim of non-conformity within thirty (30) days of the date on which Customer first noticed the non-conformity, Cloudera will use commercially reasonable efforts to correct the reported non-conformity at no charge to Customer, or if Cloudera determines such remedy is not feasible, either party may terminate the Subscription to the Services. The foregoing is Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 10.2. This warranty will not apply if the non-conformity was caused by: (a) use of the Services not in accordance with the Agreement or (b) third-party products or services.

10.3  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 CUSTOMER 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. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

11.  INDEMNIFICATION.

11.1  Indemnification by Cloudera.

11.1.1  Subject to the terms of this Section 11.1 and Section 11.3, Cloudera agrees, at its own expense, to: (a) defend Customer against any third party claim, suit, or action brought against Customer alleging that the Services, when used in accordance with the Agreement, infringe such third party’s United States patent, trademark, copyright or other proprietary right, or misappropriate such third party’s trade secrets under the laws of the United States (each an “IP Claim”); and (b) indemnify Customer from any damages finally awarded against Customer to the third party making such claim by a court of competent jurisdiction or agreed to in settlement with regard to any such IP Claim, including any awarded costs and awarded attorney’s fees.

11.1.2  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 Customer the right to continue to use the Services; (b) replace the alleged infringing portion of the Services with a non-infringing alternative; (c) modify the alleged infringing portion of the Services to make it non-infringing; or (d) if Cloudera determines that it is not commercially reasonable to perform any of alternatives (a) through (c), Cloudera may terminate the Subscription to the Services, in which case Cloudera will issue a refund to Customer for any pre-paid and unused fees or credits purchased by Customer in connection with the Services.

11.1.3  In no event will Cloudera have any obligations under this Section 11.1 or any liability for any IP Claim if the IP Claim is caused by, or results from: (a) the combination or use of the Services with products, services or data not supplied by Cloudera, if such IP Claim would have been avoided absent such combination or use; (b) modification of the Services by anyone other than Cloudera, if such IP Claim would have been avoided by use of the unmodified Services; (c) Customer's use of the Services in a manner not strictly in accordance with the Agreement; or (d) any software made available under an open source license.

11.1.4  THIS SECTION 11.1 STATES CLOUDERA'S ENTIRE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR ALLEGED INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

11.2  Indemnification by Customer. Subject to the terms of this Section 11.2 and Section 11.3, Customer 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 Customer’s use of the Services in violation of applicable laws or in breach of the terms of the Agreement (a “Claim Against Cloudera”); 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 Against Cloudera, including any awarded costs and awarded attorney’s fees.

11.3  Indemnification Procedures. As conditions to indemnification under this Section 11, the indemnified party must:  (a) notify the indemnifying party promptly in writing of the claim for which the indemnified party is seeking indemnification; (b) grant the indemnifying party sole control over the defense and settlement of such claim; and (c) provide the indemnifying party with reasonable assistance and cooperation as may be requested by the indemnifying party at the indemnifying party’s expense.  The indemnifying party: (i) will not be responsible for any settlement that it has not approved in writing; and (ii) may not settle or compromise a claim without the prior written consent of indemnified party if such settlement imposes an obligation on, or includes an admission of liability on the part of, the indemnified party.

12.  LIMITATION OF LIABILITY.

12.1  SUBJECT TO SECTION 12.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, 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 THE AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

12.2  SUBJECT TO SECTION 12.3 BELOW, A PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID TO CLOUDERA UNDER THE AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM.

12.3  THE LIMITATIONS OF LIABILITY IN SECTIONS 12.1 AND 12.2 DO NOT APPLY TO: (A) CLAIMS ALLEGING FRAUD OR WILLFUL MISCONDUCT; OR (B) BREACHES OF SECTIONS 2.1 OR 2.2.  THE LIMITATIONS OF LIABILITY IN SECTION 12.2 DO NOT APPLY TO: (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11; OR (II) CLAIMS FOR NON-PAYMENT.

13. GENERAL.

13.1  Diagnostics and Reporting. Customer 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 Customer Environment and use of those elements of Cloudera Online Services that are deployed in the Customer 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 Customer may elect to change the diagnostic function of the Services in order to disable regular automatic reporting, Customer 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 13.1 does not include metering capabilities within the Services which Cloudera uses to determine Customer’s usage for billing purposes.  Customer may not disable, tamper with or otherwise alter any such metering capabilities within the Services.

13.2  Modifications to these Terms. Cloudera may, from time to time, update these Terms, including Policies incorporated herein by reference. Unless otherwise specified by Cloudera, updates to these Terms: (a) go into effect as of the date such updates are released by Cloudera and made available at: https://www.cloudera.com/legal/commercial-terms-and-conditions.html (the “Modified Terms Effective Date”), and (b) apply to Customer upon (i) the first renewal of Customer’s Subscription Period following the Modified Terms Effective Date, or (ii) entry into a new Order Form after the Modified Terms Effective Date. Cloudera will use reasonable efforts to notify Customer of changes to these Terms that Cloudera deems to be material changes through communications via Cloudera Portal, email or other reasonable means. Customer may be required to click to accept or otherwise agree to changes to these Terms before renewing a Subscription Period or entering into a new Order Form.  In any event, however, Customer’s continued use of the Services after the updated version of these Terms goes into effect will constitute Customer’s acceptance of such updated version.

13.3  Assignment. Neither the Agreement nor any rights or duties thereunder may be transferred, assigned or delegated by Customer, 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 Customer may assign the Agreement, 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 Customer’s obligations, and such Affiliate is, in the sole judgment of Cloudera, adequately capitalized and credit-worthy. Cloudera may freely transfer, assign or delegate the Agreement or its rights and obligations thereunder. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

13.4  Marketing; Publicity. Subject to Customer’s express prior written approval in each instance, which may, for the purposes of this Section 13.4, be provided via e-mail, the parties may agree from time to time to collaborate on any or all of the following co-marketing activities: (a) inclusion of Customer’s name and logo on Cloudera’s website and public customer lists; (b) publication of a press release describing Customer’s election to use the Services; and/or (c) publication of a written or video success story describing Customer’s use of the Services.

13.5  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.

13.6  Severability. If any provision of the Agreement is 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 the Agreement is not affected in any manner adverse to either party, and (ii) the parties will negotiate in good faith to modify the Agreement so as to give effect to the original intent of the parties as closely as possible.

13.7   Waiver. The failure of a party to enforce any provision or exercise any right under the Agreement 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.

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

13.9  Governing Law; Jurisdiction and Venue. The Agreement is 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 the Agreement 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.

13.10  Dispute Resolution; Attorneys’ Fees and Costs. In any action to enforce the terms of the Agreement, the prevailing party will be entitled to costs and attorneys’ fees from the non-prevailing party.

13.11  Notices. All notices required or permitted under this Agreement must be in writing.   Notices to Customer may be sent to Customer’s address or email address as set forth in the applicable Order Terms, or as provided by Customer within its Services account.  Notices to Cloudera must be sent to 395 Page Mill Road, Palo Alto, CA 94306, to the attention of the Cloudera Legal Department.  Notices will be effective: (a) upon delivery, if delivered in person or through use of a reputable courier or overnight delivery service, (b) two (2) business days after mailing, if sent by a form of certified mail, or (c) if sent by Cloudera to Customer by email, upon successful transmission of  such email. 

13.12  Entire Agreement.  The Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter thereof and supersedes 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. The terms of the Agreement will prevail over any additional, conflicting or inconsistent terms or conditions which may appear on any purchase order furnished by Customer, and any such terms on a Customer purchase order will have no force or effect, notwithstanding Cloudera’s acceptance or execution of such purchase order.

13.13  No Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.

13.14  Force Majeure. Except with regard to payment obligations, 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.

13.15  Independent Contractors. The relationship between the parties established under the Agreement is that of independent contractors, and nothing in the Agreement 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.

13.16  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 13.16.

13.17  Export Control. The Services and Cloudera Open Source Software may be subject to export laws and regulations of the United States and other jurisdictions. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions.  Without limiting the foregoing, (a) Customer 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) Customer 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) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

13.18  Federal Government End Use Provisions. If Customer is a United States government entity, or the Agreement otherwise becomes subject to the Federal Acquisition Regulation (FAR), Customer 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 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).