The following Cloudera Standard License Terms and Conditions (“Terms”) are hereby incorporated by reference into, and made an integral part of, the Quote (as defined below) entered between you, or the company you represent (“you” or “Licensee”), and Cloudera, Inc. (“Cloudera”) and shall govern your subscription of the License (as defined below). For the purposes of these Terms, “Quote” shall mean an accepted and agreed subscription proposal, purchase order, or any other ordering document of any kind, executed by you for the receipt of the License, in the form provided to you by Cloudera Each Quote will set forth the type and description of the services and/or software licensed being ordered and the applicable fees payable for such services and/or licensed software. In the event of a conflict between these Terms and the Quote, these Terms shall prevail unless explicitly stated otherwise in the Quote For the avoidance of doubt these Terms are only applicable to the service or product described in the Quote and are not applicable to Cloudera’s other products and services . Cloudera shall not be responsible for providing any service or product not described in the applicable Quote. The Quote and these Terms shall collectively be referred to herein as the “Agreement”.
By signing or otherwise executing the Quote or by placing a purchase order or by using Cloudera’ licensed software or services, you expressly acknowledge and agree that you have understood and agreed to comply with and be legally bound by, the terms and conditions of the Agreement. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
1. License to the Software. Subject to the terms and conditions of the Agreement, Cloudera hereby grants you a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (as defined below), to install, access, and use (as applicable) Cloudera’s proprietary data processing and visualization SaaS solution and any related documentation (“Software”) for your internal business use only (the “License”).
2. License Restrictions. Except to the extent expressly permitted in these Terms, Licensee agrees and undertakes not to: (a) copy the Software; (b) sell, assign, lease, lend, rent, sublicense, or make the Software available to any unauthorized third party, or otherwise use the Software to operate in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, and interfaces) of the Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software (such as usage monitoring features); (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to) the Software; and/or (g) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software. Licensee may not distribute the License keys provided under this Agreement to any third party.
Licensee represents and warrants that it owns or has obtained the necessary rights, permissions and/or waivers, to install, use access, monitor, and inspect the Software. The licensee further represents and warrants that it shall not provide or input any documentation or data that is considered personal information into the Software or use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy and/or Intellectual Property Right.. You acknowledge that the foregoing license may be further subject to your compliance with additional use restrictions and/or limitations specified in your Quote. Licensee represents and warrants that it shall be bound by all applicable data protection legislation.
3. Account and License Key. If you use the Software on a SaaS basis, the Software is available or located on Cloudera's cloud servers through the Internet and to use the Software you must enter the license activation code provided to you by Cloudera which enables the Software to operate. Licensee may not distribute the License keys provided under this Agreement to any third party.
4. Third Party Software. The Software may include certain open-source code software and materials (as shall be listed in the documentation of the Software) (“Open-Source Software”) that are subject to their respective open-source licenses (“Open-Source Licenses”). The respective Open-Source Licenses are available within the Software's notice file and/or Software documentation, as may be amended from time to time by Cloudera, at its sole discretion. In the event of any inconsistencies or conflicting provisions between the provisions of the Open-Source Licenses and the provisions of the Agreement, the provisions of the Open-Source Licenses shall prevail with regard to such Open-Source Software.
5. Confidentiality. Licensee agrees to keep confidential and to use only for purposes of performing or as otherwise permitted under the Agreement, any Cloudera proprietary or confidential information disclosed to Licensee pursuant to the Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is rightfully known by Licensee prior to the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed (provided that Licensee shall give written notice to Cloudera of such disclosure and an opportunity, at Cloudera’s expense, to resist or restrain the scope of such request). Upon any termination of the Agreement, Licensee shall return to Cloudera, to the extent Cloudera may require, all Cloudera confidential information, and all copies thereof, in Licensee's possession, custody or control unless otherwise expressly provided in these Terms.
6. Ownership. Licensee acknowledges that Cloudera is, and shall remain, the sole and exclusive owner of any intellectual property rights in and to the Software and all its copies (as well as any modifications or improvements thereto). Cloudera reserves all rights not expressly granted herein. If Cloudera receives any feedback regarding the Software or any services provided in connection with the Agreement (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback, shall belong exclusively to Cloudera and shall be considered Cloudera’s Confidential Information, and Licensee hereby irrevocably and unconditionally transfers and assigns to Cloudera any rights it may in such Feedback and waives (and to the extent waiver is prohibited by law, covenants never to assert) any and all moral rights that Licensee may have in respect thereto. Cloudera may collect, use, and publish any anonymous information which is derived from the use of the Software (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Anonymous Information”). Any Anonymous Information may be used by Cloudera for providing the Service, for development, and/or for statistical purposes (“Analytics Information”). Such Analytics Information is Cloudera's exclusive property.
7. Indemnification. Cloudera agrees to defend, at its expense, any third-party action or suit brought against Licensee alleging that the Software, when used as permitted under the Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Cloudera will pay any damages awarded in a final judgment against Licensee that are attributable to any such claim, provided that (i) Licensee promptly notifies Cloudera in writing of such claim; and (ii) Licensee grants Cloudera the sole authority to handle the defense or settlement of any such claim and provides Cloudera with all reasonable information and assistance, at Cloudera's expense. Cloudera will not be bound by any settlement that the Licensee enters without Cloudera's prior written consent.
If the Software becomes, or in Cloudera's opinion is likely to become, the subject of an IP Infringement Claim, then Cloudera may, at its sole discretion: (a) procure for the Licensee the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Cloudera's reasonable efforts, then Cloudera may terminate the Agreement and any services provided, and license granted, to you under the Agreement, and in such event accept return of the affected Software and provide a refund for any amount pre-paid by Licensee for such returned Software for the remaining unused period of the license.
Cloudera shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Software made by a party other than Cloudera or its designee; (ii) Licensee's failure to implement software updates provided by Cloudera specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by Cloudera or not in accordance with the documentation.
This Section states Cloudera's entire liability, for claims or alleged or actual infringement.
8. Warranty. Cloudera represents and warrants that (a) the Software shall operate in substantial conformity with the applicable documentation expressly provided by Cloudera, and (b) to its best knowledge, the Software does not contain any viruses or malware. Cloudera will use reasonable commercial efforts to correct the non-conforming Software in accordance with the documentation. In the event that Cloudera is unable to correct the non-conforming Software, Licensee’s sole and exclusive remedies, and Cloudera’s sole liabilities are Cloudera will refund any prepaid fees for the Software for the remaining unused period of the license after the effective date of termination. The foregoing warranty will be void and of no effect if the non-conformance was caused by (i) Licensee’s use of the Software not in accordance with the specifications, documentation or otherwise in breach of this Agreement or Quote, (ii) modifications to the Software by Licensee or any third party, or (iii) Licensee’s or a third-party’s hardware, software, services, acts or omissions.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND ANY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLOUDERA DISCLAIMS ANY, IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE).
9. LIMITATION OF LIABILITY. IN NO EVENT WILL CLOUDERA OR ANY CLOUDERA'S AFFILIATE BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THE AGREEMENT FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OR ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS AND/ OR REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY). THE COMBINED CUMULATIVE LIABILITY OF CLOUDERA UNDER, OR OTHERWISE IN CONNECTION WITH, THE AGREEMENT WILL NOT EXCEED THE LICENSE FEES ACTUALLY PAID BY THE LICENSEE TO CLOUDERA UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10. Term and Termination. Unless terminated earlier in accordance with the terms of the Agreement, the Agreement and the License granted therein is effective for the duration of the term set forth in your Quote (which shall be on an annual subscription-based model), as may be the case (“Term”). Cloudera reserves the right, at any time, to discontinue and/or terminate the Agreement and the Licensee’s access to, and use of, the Software due to the Licensee's breach of the Agreement. Upon termination of the Agreement, Licensee shall (i) cease all use of the Software; and (ii) delete and uninstall (as applicable) all copies of the Software or other digital materials provided by Cloudera (or its authorized reseller, as applicable) which are in Licensee's possession or control. Any provision which by its nature is intended to survive termination or expiration of the Agreement shall so survive.
11. Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) under this Agreement, Cloudera reserves the right to suspend provision of the Software to Licensee (i) if Licensee is more than thirty (30) days overdue on a payment obligation in connection with this Agreement, (ii) if Cloudera deems such suspension necessary due to Licensee’s breach of Section 2 (Use Restrictions), (iii) if Cloudera reasonably determines that suspension is necessary to avoid material harm to Cloudera or its customers, including if the Software is experiencing a denial of service attack or other attacks or disruptions outside of Cloudera’s control, or (iv) as required by law or at the request of governmental entities.
11. Miscellaneous. The Agreement, including any exhibits attached or referred hereto, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to act against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of the Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The Agreement, and any rights and licenses granted thereunder, may not be transferred, or assigned by Licensee but may be assigned by Cloudera without restriction or notification. The Agreement shall be governed by and construed under the state and federal laws of the State of California, USA , without reference to principles and laws relating to the conflict of laws. You agree to submit to the personal and exclusive jurisdiction of the courts located in the state of California, USA , and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Cloudera will not be liable for any delay or failure to provide the Software resulting from circumstances or causes beyond the reasonable control of Cloudera.
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