CLOUDERA PUBLIC BETA AGREEMENT
THIS PUBLIC BETA AGREEMENT (THIS "AGREEMENT") APPLIES TO YOUR USE OF THE SOFTWARE (AS DEFINED BELOW) PROVIDED BY CLOUDERA, INC. ("CLOUDERA").
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
BY ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; A AND (III) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, CLOUDERA IS UNWILLING TO LICENSE THE SOFTWARE TO YOU.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE EARLIER OF: (I) THE DATE YOU DOWNLOADED THE SOFTWARE; OR (II) THE DATE YOU FIRST USED THE SOFTWARE.
FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES "CUSTOMER".
THIS AGREEMENT CONSTITUTES AN ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND CLOUDERA.
License; Delivery; Support Services. During the period between the Effective Date and the date on which the software becomes generally available ("Public Beta Period"), or, if the software does not become publicly available, the date upon which Cloudera notifies you that the Public Beta Period has expired, Cloudera grants to Customer a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to download, access and use the Cloudera Beta Software as provided by Cloudera either on physical media or via electronic download (and incorporated into this Agreement by reference) together with the applicable Third Party Software (as defined below) (collectively, "Software") solely for Customer's internal evaluation purposes. The Software may be downloaded from Cloudera's site at www.cloudera.com/download and Cloudera will use commercially reasonable efforts to provide standard support services for the Software as outlined at HYPERLINK "http://www.cloudera.com/content/support/en/support-info/betapolicy.html".
License Restrictions. Except as expressly authorized by this Agreement, Customer may not: (i) modify, translate or create derivative works of the Software; (ii) publicly perform, display, discuss or otherwise distribute any portion of the Software; (iii) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software; (iv) allow the transfer, transmission, export, or re-export of the Software, or any portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (v) access or use the Software in order to build a competitive product or service or copy any features, functions or graphics of the Software; or (vi) cause or permit any other party to do any of the foregoing. In addition, Customer will not remove, alter or obscure any proprietary notices in the Software, including copyright notices, or permit any other party to do so.
Customer Obligations. Customer agrees to: (i) provide Cloudera with representative data and queries via the Software; (ii) work with Cloudera to evaluate the Software at Customer's on-site data center; (iii) provide Cloudera with detailed feedback regarding the Software including, but not limited to, participating in bi-monthly meetings with Cloudera to discuss the Software's functionality; (iv) participate in Software marketing support activities including, but not limited to, the display of the Customer logo on Cloudera’s customer lists, collaborating with Cloudera in the preparation of any public announcements, including case studies, that Cloudera issues regarding the Software, presenting the Software alongside Cloudera at industry events and offering evaluations and feedback about the Software that may be leveraged for the production of a written and/or video case study (collectively, "Software Evaluations") and (v) review with Cloudera any new deployment and support expectations to ensure that Customer and Cloudera agree on any support SLAs and/or risk associated with additional or new deployment. Customer has the right to review and approve all marketing-related deliverables before Cloudera will publish in any external fashion.
Ownership. As between the parties and subject to the grants under this Agreement, Cloudera owns all right, title and interest in and to the Feedback (as defined below), the Software Evaluations and the Software and any and all related 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) embodied in the foregoing.
Nondisclosure and Publicity. "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by Cloudera to Customer concerning or related to this Agreement or Cloudera (whether before, on or after the Effective Date) which Customer knows or should know, given the facts and circumstances surrounding the disclosure of the information by Cloudera, is confidential information of Cloudera. Confidential Information includes, but is not limited to, the components of the business plans, the Software (excluding certain third party and open source software described at https://ccp.cloudera.com/display/DOC/Third-Party+Licenses (and incorporated into this agreement by reference)(collectively, "Third Party Software
")), inventions, design plans, financial plans, computer programs, know-how, customer information, strategies, benchmark and other testing results, and other similar information. Customer will, during the term of this Agreement and thereafter, maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. Customer will use the same degree of care in protecting the Confidential Information as Customer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Customer solely for the purpose of carrying out Customer's obligations under this Agreement. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement through no fault of Customer; (ii) Customer can reasonably demonstrate was in its possession prior to first receiving it from Cloudera; (iii) Customer can demonstrate was developed by Customer independently and without use of or reference to the Confidential Information; or (iv) Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback, including the results of any benchmark or other testing, provided by Customer to Cloudera with respect to the Software (collectively, "Feedback") will constitute Confidential Information. Further, Cloudera will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Customer consents to Cloudera's use of Customer's name and logo on Cloudera's website and publicly-available materials, identifying Customer as a customer of Cloudera and describing Customer's use of the Software.
Disclaimer. THE SOFTWARE IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. CLOUDERA AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM BUGS, ERRORS, OR OMISSIONS. CLOUDERA AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CLOUDERA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS RELIED ON NO WARRANTIES. CLOUDERA DOES NOT GUARANTEE THAT THE BETA SOFTWARE WILL BE MADE GENERALLY AVAILABLE, OR THAT ANY INDIVIDUAL FEATURE IN THE BETA VERSION WILL BE MADE GENERALLY AVAILABLE. CLOUDERA MAY MAKE THE BETA SOFTWARE GENERALLY AVAILABLE, OR NOT, IN ITS SOLE DISCRETION AND WITHOUT OBLIGATION TO MAKE ANY COMMUNICATION TO OF ANY KIND WITH REGARD TO SUCH AVAILABILITY.
Limitation of Liability. IN NO EVENT WILL: (I) CLOUDERA BE LIABLE TO CUSTOMER 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 THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF CLOUDERA HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) CLOUDERA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CLOUDERA, IF ANY, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
Third Party Licenses. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that Customer's use, reproduction, modification and creation of derivative works of the Third Party Software is subject to and governed by the applicable terms and conditions applicable to the Third Party Software described at https://ccp.cloudera.com/display/DOC/Third-Party+Licenses(and incorporated into this Agreement by reference). Further, notwithstanding any terms to the contrary, Cloudera makes no warranties or representations of any kind to Customer regarding the Third Party Software or that the terms or conditions applicable to the Third Party Software may not change or be altered by such third parties at any time.
Termination. Unless terminated as set forth herein, the term of this Agreement will commence on the Effective Date and continue through the Public Beta Period. In the event of a breach of Sections 1, 2, 3 or 5, Cloudera may immediately terminate this Agreement. Upon the expiration or termination of this Agreement: (i) all rights granted to Customer under this Agreement will immediately cease; and (ii) Customer will promptly provide Cloudera with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at Cloudera's sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, in addition to all definitions and this sentence, the following Sections will survive any termination or expiration of this Agreement: 2, 3(iv), 4, 5, 6, 7, 8 and 10.
Miscellaneous. This Agreement together with any exhibits attached hereto, are the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in San Mateo County, California. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement. Neither this Agreement nor any right or duty under this Agreement 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. Cloudera may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Notwithstanding any terms to the contrary in this Agreement, Cloudera may choose to electronically deliver all communications with Customer, which may include email to Customer's email address indicated in Customer's communications with Cloudera. Cloudera's electronic communications to Customer may transmit or convey information about action taken on Customer's request, portions of Customer's request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Customer agrees to do business electronically with Cloudera, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.