Last updated February 11, 2025  

 

BACKGROUND

Cloudera, Inc. (“Cloudera”) is in the business of providing software products as well as related consulting, training and software support and maintenance services.  Generally, customers use Cloudera’s software products by deploying them on customer’s premises or by accessing them as a hosted, cloud-based service. Use of Cloudera’s software on-premises is typically on a subscription basis, where Cloudera provides the customer the right to access the software and receive software maintenance and support during a fixed subscription period.  Hosted, cloud-based services may be provided on a consumption basis, where Cloudera grants access to the service and a customer pays based on such customer’s usage of the service. This Enterprise Subscription Master Agreement (“ESMA” or “Agreement”) contains terms that govern Customer’s usage of Cloudera’s software products and related services.    

1.        Definitions. Capitalized terms not otherwise defined elsewhere in this ESMA, in the terms referenced by this ESMA, or in a particular Order Form, shall, for the purposes of this ESMA, including any exhibits hereto and any Order Forms hereunder, have the following meanings:

1.1        “Affiliate” means any 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 that legal entity. For the 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 for only such time as such interest or control is maintained.

1.2        “Authorized Partner” means a reseller or a distributor authorized by Cloudera to resell Services and/or Cloudera Products.

1.3       “Cloudera Online Services” means online services offerings as identified in the applicable Order Form that are provided by Cloudera, using hosted Cloudera Software, as cloud-based services. Cloudera Online Services may also utilize Cloudera Software, which is distributed to Customer.

1.4        “Cloudera Product & Service Data Policy” is Cloudera’s policy which describes Cloudera’s collection, use, storage, and otherwise processing of data related to the Customer (including any Customer Affiliate) and to the Customer’s use of Cloudera Products and Services in connection with agreements or terms and conditions in place between the parties.  The Cloudera Product & Service Data Policy can be found at the following link: The Cloudera Product & Service Data Policy.  

1.5        “Cloudera Products” means Cloudera offerings as follows: (i) for Cloudera’s on-premise offerings, Subscriptions to use the applicable Cloudera on-premises offering identified in the Order Form together with the associated Support Services during the Subscription Period, and (ii) for Cloudera’s hosted, cloud-based offerings, the right to use the Cloudera Online Services identified in the Order Form during the Subscription Period.

1.6        “Cloudera Software” means the software that is included in the Cloudera Products, including software that is distributed to Customer as part of Cloudera’s on-premises offerings, the hosted software that is part of a Cloudera Online Service, or any software distributed to Customer as part of and/or to enable the delivery of Cloudera Online Services (including software deployed to a Workload Environment and/or On-Premise/Private Cloud Environment, as such terms are defined in the Cloudera Product & Service Data Policy).  

1.7        “Customer” means the Cloudera customer that has purchased Cloudera Products and/or related Services either (a) directly from Cloudera via an Order Form that references or otherwise incorporates this ESMA, or (b) through an Authorized Reseller where Customer agrees that this Agreement governs Customer’s use of Cloudera Products and/or Services.

1.8        “Effective Date” means the date on which the Order or other ordering document that references this Agreement is effective. 

1.9        “Free Trial Product” means a trial offering of a Cloudera Product provided by Cloudera free of charge solely for the purpose of enabling evaluation of the Cloudera Product prior to the potential purchase of such Cloudera Product.

1.10        “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.

1.11        “Metrics” means the license usage, subscription metrics, and/or support entitlement metrics necessary to meter Customer’s usage of Cloudera Products and Services (as defined in the applicable Order Form) for purposes of ensuring compliance with its contractual obligations, conducting billing and invoicing, planning migrations and upgrades, and otherwise managing Customer’s account and subscriptions. Such Metrics may include, but are not limited to, the following:  Nodes, Cores, Unique Identifiers, and Capacity Under Management. Definitions for the various Metrics can be found at: Cloudera Subscription Product Metrics.

1.12        “Open Source Software” means any Third-Party Software and the functionalities therein, as included in or distributed with Cloudera Software, which are generally available and obtained by Cloudera via an inbound license as freeware, shareware, or open source software under the Mozilla Public License, BSD, GNU General Public License or the Apache Software License, or under or pursuant to similar licensing or distribution models.  For the avoidance of doubt, Open Source Software shall remain categorized as Open Source Software for the purposes of interpreting this ESMA despite subsequent modifications by Cloudera prior to distribution to Customer.    

1.13        “Order Form” means an ordering document by which Customer purchases Cloudera Products and/or Services, including order forms, quotes, statements of work, and other transaction documents referencing this ESMA. Order Forms that reference this ESMA are deemed incorporated herein and are subject to and governed by this ESMA.

1.14        “Pre-Existing Property” means any and all Intellectual Property Rights owned or controlled by Cloudera prior to the effective date of the applicable Order Form, including, but not limited to, the Intellectual Property Rights in and to Cloudera Software and any and all modifications thereto and derivative works thereof.

1.15        “Professional Services” means the professional and/or consulting services performed or to be performed by Cloudera under this ESMA, in accordance with the applicable Order Form.

1.16        “Services” means collectively the Professional Services, Support Services, and Training Services that may be purchased by Customer under an applicable Order Form as stand-alone services or as part of a Subscription.

1.17        "Subscription” means a Cloudera offering that provides Customer the right to access and use Cloudera Software, along with associated Support Services, or use a Cloudera Online Service during the term of the applicable Subscription Period.

1.18        “Subscription Period” means the period of time for which Customer is purchasing and will be entitled to the benefits of the applicable Subscription as identified in the applicable Order Form.

1.19        “Support Services” means the technical support and software maintenance provided by Cloudera and included as part of Subscriptions for the various Cloudera Products. Details regarding Support Services are set forth in Section 3.2 below.

1.20        “Third Party-Software” means 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 or made available by Cloudera to Customer. Third-Party Software includes Open Source Software.

1.21        “Training Materials” means the course slides, OnDemand videos and other documentation including the training exercises and training labs provided in conjunction with Training Services.

1.22        “Training Services” means one or more of the then-current Cloudera training offerings listed at Training Services. The list of Training Services may be updated by Cloudera from time to time. Training Services are provided subject to this ESMA, the applicable Order Form, and the policies at the foregoing URL.

1.23        “Update” means a new minor release of the Cloudera Software within a Cloudera Product providing patches, bug fixes and other such modifications, resulting in an increase in the release version number to the right of the decimal point, as in x.1 to x.2.

1.24        “Upgrade” means a new major release of the Cloudera Software within a Cloudera Product providing substantially new features, functionality, and/or enhancements, resulting in an increase in the release version number to the left of the decimal point, as in 1.x to 2.x.

1.25        “Work Product” means all tangible materials (including but not limited to drawings and documentation) delivered by Cloudera in the course of Cloudera’s performance of the Professional Services that are created for Customer as set forth in an Order Form for Professional Services; provided, however, Work Product expressly excludes any and all: (i) Pre-Existing Property; (ii) Training Materials; (iii) Documentation; (iv) improvements, modifications, enhancements, or extensions to or derivative works of Pre-Existing Property created or developed by Cloudera during the course of performing Services that have or could have general applicability to Cloudera’s customers (“General Enhancements”); and (v) ideas, processes, programs, concepts, business methods, inventions, implementation architectures related to Cloudera Software, and developments of general application throughout all industries or a single industry that are discovered, created or developed by Cloudera during the course of performing the Services (“Cloudera IP”), provided that General Enhancements and Cloudera IP will never include any of Customer’s Confidential Information.

2.        Access and Use Rights; License Grant; Restrictions; Ownership.

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

2.2        License Grant for Distributed Cloudera Software. Subject to the terms and conditions of this ESMA and the applicable Order Form, Cloudera grants to Customer a worldwide, revocable, non-exclusive, non-transferable, and non-sublicensable license to use Cloudera Software, solely (a) during the applicable Subscription Period, (b) for Customer’s internal business purposes, and (c) in accordance with applicable Documentation. Upon expiration of such Subscription Period or any earlier termination of the applicable software licenses as provided in this ESMA or the applicable Order Form, Customer will cease using Cloudera Software and return or destroy all copies of Cloudera Software.  This Section 2.2 (including the grant of license) applies only to Cloudera Software that is distributed to Customer as part of Cloudera’s on-premises offering and/or to enable the delivery of Cloudera Online Services.

2.3        Restrictions. With respect to the Cloudera Products purchased under this ESMA and the applicable Order Form, Customer shall not: (a) exceed the applicable usage limits stated in the Order Form (for example, the applicable quantity of Metrics for a particular Cloudera Product), (b) modify, translate or create derivative works of Cloudera Software, (c) decompile, reverse engineer or reverse assemble any portion of Cloudera Software or attempt to discover any source code or underlying ideas or algorithms of Cloudera Software, (d) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of Cloudera Software to a third party, (e) make, have made, reproduce or copy Cloudera Software, (f) remove or alter any trademark, logo, copyright or other proprietary notices associated with Cloudera Software, (g) use Cloudera Products to provide services for, or otherwise for the benefit of, third parties, including without limitation, using Cloudera Products to provide software as a service, platform as a services, or similar services offering, (h) circumvent or attempt to circumvent any aspect of the Cloudera Products (including the Cloudera Software), which is designed to manage or restrict unauthorized access or use of Cloudera Products and/or Cloudera Software, or (i) cause or permit any other party to do any of the foregoing.

2.4        Ownership and Reservation of Rights. As between the parties and subject to Sections 2.1, 2.2 and 3.3.1 of this ESMA, Cloudera and its licensors own and retain all right, title and interest in and to: (i) the Cloudera Software, (ii) the Cloudera Online Services, (iii) the Cloudera IP, (iv) the Pre-Existing Property, (v) the General Enhancements, (vi) Training Materials, (vii) all Cloudera logos and trademarks included in any of the foregoing, and (viii) any and all Intellectual Property Rights embodied in the foregoing. Cloudera reserves all rights not expressly granted in this ESMA or the applicable Order Form, and no licenses are granted by Cloudera to Customer, whether by implication, estoppel or otherwise, except as expressly set forth in this ESMA or the applicable Order Form.

2.5        License Keys.  Any license keys provided by Cloudera to Customer are personal to Customer.  Customer may not distribute any license keys provided by Cloudera to any third party.  Such license keys are the Confidential Information of Cloudera and are subject to the confidentiality requirements of Section 6 of this ESMA.

2.6        Affiliate Use. An Affiliate of Customer may access and use the Cloudera Products which Customer has purchased under an applicable Order Form, provided that: (i) such Affiliate agrees in writing with Cloudera to be bound by and accepts all of the obligations imposed upon Customer under this ESMA (other than payment obligations for which Customer is solely responsible to Cloudera or its Authorized Partner, as applicable) or Customer agrees to be responsible for the acts and omissions of such Affiliate in relation to the applicable Order Form; (ii) the Affiliate is not a Cloudera customer under separate contract, nor actively engaged with Cloudera in discussions for the purchase of Cloudera Products at the time an Order Form is executed pursuant to this ESMA; (iii) the Affiliate is not a direct competitor of Cloudera; and (iv) all of Customer’s obligations under this ESMA and the applicable Order Form will remain in force and undiminished.

2.7      Third Party Service Provider Rights.

2.7.1        Cloudera grants to Customer the right to permit one or more third-party service providers to access and use the Cloudera Software and related Support Services for which Customer has purchased a Subscription during the Subscription Period, provided that: (i) any such third party exercises such rights solely to provide goods to or perform services for Customer and/or its Affiliates; (ii) all such use is subject to the terms and conditions of this ESMA and the applicable Order Form; and (iii) such third party is not a direct competitor of Cloudera.  Customer will ensure that any third-party service providers that access or use the Cloudera Software and related Support Services shall comply with this Section 2.7.1, and Customer will be responsible for the acts and omissions of each such third party as fully as if they were Customer’s acts and omissions.

2.7.2        Notwithstanding Section 2.7.1 (iii), Customer may use third-party cloud service providers to host Cloudera Software for the benefit of Customer, provided that such third party’s platform is supported by Cloudera. Customer will be fully responsible for ensuring that such platform meets Customer’s performance and availability requirements and for complying with the applicable terms and conditions of use for such platform.

3.        Delivery; Services.

3.1        Delivery. Upon Cloudera’s acceptance of Customer’s Order Form or the Subscription Period start date indicated therein (whichever is later), Cloudera will make the Cloudera Software available for download (or, in the case of any Cloudera Online Services, will make the services available to Customer through Cloudera’s web site). The Cloudera Software or Cloudera Online Services will be deemed delivered when the electronic download or the online access is initially made available, as applicable. Customer acknowledges that Cloudera does not control the transfer of data over the internet and that Cloudera is not responsible for any delays or delivery failures caused by the internet.

3.2        Support Services.  Cloudera will use commercially reasonable efforts to provide technical support and software maintenance services for Cloudera Software as set forth at the following link: Cloudera Support Services Policy. Cloudera may update such policies and/or support terms from time to time.  Any updates to the terms applicable to Support Services made during any then-current Subscription Period will not apply until the start date of the next Subscription Period. The Support Services include the provision of Updates and Upgrades to the Cloudera Software, when and if such Updates or Upgrades are made generally available. 

3.3        Professional Services; Training Services.

3.3.1        Ownership of Work Product. In the event that the performance of Professional Services results in Work Product, all right, title and interest in the Work Product vests in Customer. Such Work Product is deemed to be a work made for hire, and to the extent it may not be considered a work made for hire, Cloudera assigns to Customer all right, title and interest in and to the Work Product and any and all Intellectual Property Rights embodied therein. Notwithstanding any terms to the contrary in this ESMA or the applicable Order Form, Cloudera owns all right, title and interest in and to any and all bug-fixes, extensions, improvements or enhancements to the Cloudera Software (including all Intellectual Property Rights embodied therein), and no rights to the foregoing are granted hereunder. Cloudera grants to Customer a non-exclusive, non-transferable, revocable and limited license to use the Cloudera IP solely in conjunction with Customer’s use of the Work Product, provided that Customer may not: (i) modify, disclose, alter, translate or create derivative works of the Cloudera IP; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Cloudera IP; or (iii) disassemble, decompile or reverse engineer any of the Cloudera IP.

3.3.2        Training Services. If Customer orders Training Services, all works of authorship, inventions, improvements, methods, processes, formulas, designs, techniques and information conceived, discovered, developed or otherwise made by Cloudera (as necessary to establish authorship, inventorship or ownership), solely or in collaboration with others, in the course of performing the Training Services, including any and all Training Materials, will be the sole property of Cloudera. No title to or ownership of any property or any associated Intellectual Property Rights are transferred to Customer in the performance of the Training Services. In addition, Customer may not make recordings of any kind of the Training Services. Notwithstanding the foregoing, Customer participants attending the Training Services may retain one copy of the Training Materials for personal use only.

4.        Free Trial Products; Sample VPCs and Sample Data

4.1        Subscriptions to Free Trial Products. If Customer executes an Order Form pursuant to this ESMA for a Subscription to a Free Trial Product, Cloudera will make the Free Trial Product available to Customer beginning on the Subscription Period start date of such Order Form until: (i) the end of the Subscription Period as set forth in the Order Form, or, if no Subscription Period is specified in the Order Form, then thirty (30) days from the date of Customer’s execution of the Order Form; or (ii) termination of access to or use of the Free Trial Product 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 Product. 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 or use of the Free Trial Product without the requirement that Customer execute an Order Form. Such Free Trial Product will, nonetheless, be treated as a Free Trial Product 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 or use of the Free Trial Product and ending on the date on which Cloudera notifies Customer that the Trial Subscription Period is ending (where, for the purposes of this Section 4.1, such notice can be provided via email).

4.2        Sample VPCs and Sample Data. Cloudera may make Sample VPCs and sample data (the “Sample Data”) available to Customer to facilitate Customer’s trial and evaluation of Cloudera Online Services, and Customer may access and use such Sample VPCs and Sample Data, solely for such purpose. “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 Products that are Cloudera Online Services.

4.3        DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR FREE TRIAL PRODUCTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ESMA, INCLUDING WITHOUT LIMITATION, THE TERMS OF SECTIONS 7.2 AND 8: (A) FREE TRIAL PRODUCTS, 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 PRODUCTS, SAMPLE VPCS OR SAMPLE DATA; AND (C) CLOUDERA HAS NO INDEMNIFICATION OBLIGATIONS WHATSOEVER WITH REGARD TO FREE TRIAL PRODUCTS, SAMPLE VPCS OR SAMPLE DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOUDERA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES WITH REGARD TO FREE TRIAL PRODUCTS, 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 PRODUCTS, SAMPLE VPCS OR SAMPLE DATA ARE OR WILL BE ERROR-FREE OR UNINTERRUPTED, WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL BE TIMELY OR SECURE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 OF THIS ESMA: (A) 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 PRODUCTS, SAMPLE VPCS OR SAMPLE DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (B) IN NO EVENT WILL CLOUDERA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO FREE TRIAL PRODUCTS, 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.        Ordering; Financial Considerations.

5.1        Orders for Cloudera Products and Services. Subject to the terms and conditions of this ESMA and the applicable Order Form, Cloudera will provide to Customer the Cloudera Products and Services agreed by the parties in applicable Order Forms.  Cloudera Products and Services are only for Customer’s internal use. Customer may not use the Services to supply any consulting, training or support services to any third party.

5.2        Affiliate Orders. An Affiliate of Customer may execute an Order Form pursuant to this ESMA, and such Affiliate will be deemed to be the Customer for purposes of such Order Form, including being bound by the terms of this ESMA.

5.3        Fees; Taxes.

5.3.1        Fees for Metrics and Cloud Prepay Credits. Customer will pay to Cloudera or its Authorized Partner, as applicable, the total fees due for the applicable Subscription Period, including any renewals thereof pursuant to Section 10.1, and for applicable usage of Cloudera Online Services. Unless the applicable Order Form provides otherwise, Cloudera will invoice Customer the total fees specified in an Order Form upon execution of the applicable Order Form (including any fees associated with prepay credits related to Cloudera Online Services). For the avoidance of doubt, with respect to Cloudera Products, all Subscriptions (excluding Subscriptions for Unique Identifiers) for any given cluster must be for the same Cloudera Software and Support Services entitlements, and be procured according to the same Metric. However, individual add-on Cloudera Product may be entitled at a Node level within the cluster.

5.3.2        Fees for Usage Above the Order Form Quantity. During the Subscription Period, Customer may elect to use additional capacity that exceeds the quantity of the applicable Metrics set forth in an Order Form. Customer may also exceed usage of Cloudera Online Services beyond Customer’s then-available cloud prepay credits. In such cases, Customer must notify Cloudera or its Authorized Partner, as applicable, of its elected use of such additional capacity. In the event that Customer: (i) elects to add capacity, or (ii) exceeds the Metrics set forth in an Order Form, the fees for such additional capacity/usage will be calculated for the period commencing immediately upon: (a) the installation date of the additional Nodes, (b) the date when Capacity Under Management or quantity of Unique Identifiers increased (whether used or not), (c) the date when additional support entitlement Metrics for Cloudera Products are required, or (d) the date on which Customer exhausted its available cloud prepay credits for Cloudera Online Services.  Unless otherwise agreed in the Order Form, for subscription-based Cloudera Products, the Subscription Period of the additional capacity will be pro-rated such that it will terminate on the same date as the existing Subscription Period, and, for Cloudera Online Services, Customer must purchase additional cloud prepay credits or its usage will be converted to the pay-as-you-go billing option where Cloudera is authorized to issue monthly invoices to Customer charging Customer fees for its applicable usage of Cloudera Online Services beyond available cloud prepay credits and Customer agrees to pay such invoices in accordance with the terms of its applicable agreement with Cloudera, regardless of whether a purchase order has been provided by Customer to cover such overages.

5.3.3        Subscription Period Not Cancelable. Except for the provisions of this ESMA allowing for early termination, the Subscription Period is non-cancelable and non-terminable. Unless an Order Form has been terminated by Customer in accordance with Section 10.2, Cloudera reserves the right to invoice Customer for any future payments included in an Order Form and will not be obligated to issue any refunds for Subscription fees paid.

5.3.4        Fees for Professional Services and Training Services. The fees associated with the performance of the Professional Services and/or Training Services will be as set forth in the Order Form applicable to such Services. Fees do not include travel and related expenses incurred as a result of delivering the Services, and Customer will be responsible for such travel and related expenses unless indicated otherwise in the applicable Order Form.

5.3.5        Required Subscription Fees. While Customer has an active Subscription for Cloudera Products covering Customer’s computer systems (e.g., Nodes, Cores, etc.) that allows Customer to receive Support Services related to a Cloudera Product, Customer agrees that all of its computer systems on which Customer has deployed Cloudera Software will be covered by an active Subscription.

5.3.6        Payment Terms. Upon receipt of Customer’s (or an Authorized Partner’s) purchase order or Order Form for a Cloudera Product or for related  Services, and/or for any additional capacity purchased, used or increased as provided in Section 5.3.2 above, unless the applicable Order Form includes a billing and/or payment schedule, Cloudera or its Authorized Partner, as applicable, will invoice Customer the applicable fees as described in this Section 5.3. Fees are due to Cloudera within thirty (30) days of the date of Cloudera’s invoice. Where a Subscription for a Cloudera Product is purchased through an Authorized Partner, any disputes regarding payment must be addressed to such Authorized Partner. In addition to any of its other rights or remedies (including, without limitation, any termination rights) under this Agreement or an Order Form, Cloudera reserves the right to suspend provision of Services to Customer (i) if Customer is more than thirty (30) days overdue on any payment obligation (including due to any over deployments of Cloudera Software), (ii) if Cloudera deems such suspension necessary due to Customer’s breach of applicable use restrictions in connection with a Cloudera Product or Cloudera Software, or (iii) as required by law or at the request of governmental entities.  If suspension is due to past due amounts under subsection (i) above, the applicable Services will be resumed and/or restored upon receipt by Cloudera of all overdue amounts.  No suspension under this paragraph will (a) relieve Customer from complying with any of Customer’s obligations under this Agreement and all Order Forms hereunder or (b) extend any Subscription Periods. 

5.3.7        Payment Method and Currency. Except as may otherwise be set forth in any Order Form between Customer and an Authorized Partner, if applicable, all payments due under the Agreement will be made: (i) by bank wire transfer, electronic ACH deposit or company check in immediately available funds to an account designated by Cloudera; and (ii) in the currency as set forth in the applicable Order Form (or USD where no currency is specified).

5.3.8        Taxes. The fees for Subscriptions to Cloudera Products and Services 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 to Cloudera Products, Work Product, and the provision of Services under the Agreement, 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 Tax, subject to Cloudera providing documentation to support the lowest legal withholding rate under the 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.

6.        Confidentiality; Publicity; Data Protection.

6.1        Confidentiality.

6.1.1        “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”) concerning or related to the business relationship (or potential business relationship) between the parties, whether before, on or after the Effective Date that is: (i) characterized as confidential information at the time of disclosure or within a reasonable time after disclosure; or (ii) that due to the nature of the information and circumstances surrounding its disclosure would be reasonably understood by a person with no knowledge of the relevant trade or industry to be confidential or proprietary. Confidential Information will not include information that: (i) is in or enters the public domain without breach of the 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.

6.1.2        Period of Confidentiality. The Receiving Party will, during the term of this ESMA and for three (3) years thereafter, be required to maintain the confidentiality of the Disclosing Party’s Confidential Information by using the same degree of care to maintain the confidentiality of such Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. Notwithstanding the foregoing, where the Confidential Information disclosed is: (i) 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 (ii) 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.

6.1.3        Use; Disclosure. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this ESMA. In addition, the Receiving Party will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this ESMA. 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, 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 provided further that 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.

6.1.4        Remedy for Breach. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 6.1. Therefore, the parties agree that a 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 by the other party of this Section 6.1.

6.2        Publicity. Cloudera shall have the right to include Customer’s name and logo on Cloudera’s website and other public customer lists. Customer agrees to cooperate with Cloudera, at Cloudera’s reasonable request, on public content that describes Customer’s election to use Cloudera Software or Services, including, but not limited to, press releases describing Customer’s election to use the Cloudera Software or Services; and publication of written or video success stories describing Customer’s use of the Cloudera Software or Services.

6.3        Data Protection. The Cloudera Product & Service Data Policy, as may be updated by Cloudera from time to time, will apply to and govern (a) Cloudera’s handling, storing, and otherwise treating of the various types of data identified therein in connection with Customer’s use of Cloudera’s Products and Services, and (b) Customer’s obligations with respect to such data in connection with Customer’s use of Cloudera’s Products and Services. The Cloudera Product & Service Data Policy (including capitalized terms therein) is hereby incorporated into this Agreement by reference. For avoidance of doubt, the Cloudera Product & Service Data Policy applies to any Order Forms entered into hereunder..

7.        Warranties; Disclaimer.

7.1        General Warranties. Each party warrants that as of the Effective Date: (i) it validly exists and is in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under this ESMA; (iii) the person signing this ESMA (or an Order Form referencing this ESMA) on its behalf has been duly authorized and empowered to do so; and (iv) this ESMA is valid, binding and enforceable against it in accordance with its terms.

7.2        Cloudera Software Product Warranty. Cloudera warrants that for a period of thirty (30) days following the date on which Customer initially deploys applicable Cloudera Software and any subsequent initial deployments of Upgrades to such Cloudera Software (each such period, a “Warranty Period”), the Cloudera Software will perform in all material respects in accordance with the applicable documentation as provided by Cloudera at the following link: Cloudera Product Documentation (the “Documentation”). Customer must notify Cloudera of any non-conformance with this warranty during the applicable Warranty Period, and as Cloudera’s sole obligation and Customer’s exclusive remedy for breach of warranty, Cloudera will either: (i) repair the Cloudera Software such that it conforms to the Documentation; or (ii) replace the Cloudera Software with an equivalent product that conforms to the Documentation; provided, however, if neither (i) nor (ii) is reasonable or practicable, Customer may return the applicable Cloudera Software and obtain a pro-rated return of the Subscription fees for the then-current Subscription Period Customer paid to Cloudera for Cloudera Product associated with the defective Cloudera Software.

7.3        Professional Services and Training Services Warranty. Cloudera warrants that it will perform the Professional Services and the Training Services in a professional and workmanlike manner and consistent with applicable industry standards. For any Professional Services or Training Services that do not conform to this warranty, Customer must notify Cloudera within thirty (30) days of the delivery of any non-conforming Professional Services or Training Services, and as Cloudera’s sole obligation and Customer’s exclusive remedy, Cloudera, at its sole discretion, will either: (i) re-perform such non-conforming Professional Services or Training Services at no additional charge to Customer, or (ii) refund any Professional Services or Training Services fees paid to Cloudera for such non-conforming Professional Services or Training Services, and terminate all or a portion of the applicable Order Form at Cloudera’s discretion.

7.4        Disclaimer. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 7, CLOUDERA AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE CLOUDERA PRODUCTS (AND THE ASSOCIATED CLOUDERA SOFTWARE) AND THE SERVICES, 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. CLOUDERA AND ITS SUPPLIERS MAKE NO WARRANTIES WITH RESPECT TO THE CLOUDERA PRODUCTS, THE CLOUDERA SOFTWARE OR THE SERVICES BEING FREE FROM BUGS, ERRORS, OR OMISSIONS. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY OF THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 FAIL OF THEIR ESSENTIAL PURPOSE.

8.        Cloudera’s Indemnification Obligations.

8.1        Subject to this Section 8, Cloudera agrees, at its own expense, to pay all Damages (as defined below) and defend Customer from (or at Cloudera's option, settle) any claim instituted by a third party and asserted against Customer after the Effective Date that any Work Product (if any) or Cloudera Software when used in accordance with the applicable Documentation infringes any United States patent, copyright, trade secret or other proprietary right of a third party (each an "IP Claim"), provided that Customer: (i) promptly notifies Cloudera in writing of any such IP Claim; (ii) gives Cloudera sole control over the investigation, defense and settlement of the IP Claim; and (iii) assists and fully cooperates with Cloudera in the defense of same. Cloudera agrees to pay any damages awarded by a court of competent jurisdiction against Customer (or agreed to in a settlement by Cloudera) resulting from the IP Claim, including any awarded costs and awarded attorneys' fees (collectively "Damages"). Cloudera will not be responsible for any settlement (and the associated Damages agreed to in such settlement) that it does not approve in writing prior to such settlement.

8.2        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: (i) procure for Customer the right to continue to use the Cloudera Software or Work Product (as applicable); (ii) replace the Cloudera Software or Work Product; (iii) modify the Cloudera Software or Work Product to make it non-infringing; or (iv) if Customer's use of the Cloudera Software or Work Product is enjoined in a non-appealable judgment and Cloudera determines that it is not commercially reasonable to perform any of alternatives (i) through (iii), Cloudera may (a) terminate the license for the allegedly infringing Cloudera Software and refund the pre-paid and unused Subscription fees paid by Customer for the use of the Cloudera Product containing such allegedly infringing Cloudera Software or (b) terminate the Order Form under which the Work Product had the alleged infringement. Upon such Order Form termination, Customer must, at Cloudera’s option, return or destroy such Work Product and any and all Pre-Existing Property and Cloudera IP, and Cloudera will provide a refund of all Services fees paid under such Order Form for the allegedly infringing Work Product.

8.3        In no event will Cloudera have any obligations under this Section 8 or any liability for any IP Claim if the IP Claim is caused by, or results from: (i) Customer's combination or use of the Cloudera Software or Work Product with non-Cloudera software or services, or any equipment, data or other materials, if such IP Claim would have been avoided absent such combination or use; (ii) modification of the Cloudera Software or Work Product by anyone other than Cloudera if such IP Claim would have been avoided by use of the unmodified Cloudera Software or Work Product; (iii) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (iv) Customer's use of the Cloudera Software or Work Product in a manner not strictly in accordance with this ESMA and the applicable Order Form; (v) Cloudera's modification of the Cloudera Software or Work Product in compliance with Customer's written instructions, requests or specifications; (vi) use of a release other than Cloudera's most current release of the Cloudera Software if the IP Claim would have been avoided by use of the most current release, provided Customer is given an opportunity to use such most current release for no additional fee, or (vii) any Third-Party Software (including any Open Source Software).

8.4        THIS SECTION 8 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.

9.        Limitation of Liability.

9.1        (A) 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, LOSS OF DATA, ANY INTERRUPTION OF BUSINESS, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS ESMA OR ANY ORDER FORMS HEREUNDER 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. (B) A PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS ESMA AND ALL ORDER FORMS HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT PAID TO CLOUDERA FOR SUBSCRIPTIONS TO THE CLOUDERA PRODUCTS AND THE SERVICES AS SPECIFIED IN THE APPLICABLE ORDER FORM(S) UNDER THIS ESMA IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM.

9.2        EXCLUSIONS. THE LIMITATIONS OF LIABILITY IN SECTION 9.1 DO NOT APPLY TO: (I) CLAIMS ALLEGING FRAUD OR WILLFUL MISCONDUCT; OR (II) BREACHES OF SECTIONS 2.2, 2.3, 2.4, 2.5 OR 2.6. THE LIMITATIONS OF LIABILITY IN SECTION 9.1(B) DO NOT APPLY TO: (I) CLOUDERA’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; OR (II) CLAIMS FOR NON-PAYMENT.

9.3        SECTION 9 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS ESMA IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.        Term and Termination.

10.1        Term; Automatic Renewal. Unless earlier terminated as provided in herein: (i) the term of this ESMA will commence on the Effective Date and continue for as long as Customer has an active Subscription to Cloudera Products and/or an active Order Form for Services, and (ii) each Order Form for Professional Services and/or Training Services expires one year from the initial effective date of such Order Form unless both parties agree in writing to extend the term of such Order Form. Unless a party provides written notice of non-renewal at least thirty (30) days in advance of the expiration of a Subscription Period as set forth in an Order Form, the Subscription will automatically renew for successive twelve (12) month Subscription Periods thereafter at Cloudera’s then-current list price (unless otherwise mutually agreed upon between the parties in writing), with the applicable fees due on the first day of the renewal, payable pursuant to Section 5 above.

10.2        Termination for Cause. Either party may terminate: (i) this ESMA and all Order Forms hereunder for cause: (a) if the other party materially breaches this ESMA and does not remedy such breach within thirty (30) days after its 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 as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (ii) any individual Order Form if the defaulting party fails to perform any material provision of such Order Form and does not cure the breach within thirty (30) days after receipt of written notice thereof. Termination or expiration of an individual Order Form will not affect any other Order Form or this ESMA except with respect to such terminated Order Form.

10.3        Effect of Termination; Non-Renewal. Upon any expiration or termination of this ESMA or an applicable Order Form: (i) all rights granted to Customer under this ESMA or an applicable Order Form will immediately terminate; (ii) Customer must immediately delete any associated license keys provided by Cloudera and cease any use of such keys; (iii) upon request from Cloudera, Customer must confirm in writing Customer’s compliance with the foregoing provisions in (i) and (ii); and (iv) 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 Confidential Information; provided, however, that each party may retain sufficient copies of the Confidential Information of the other party solely as may be required for compliance with internal backup policies or applicable law; and provided further that such retained Confidential Information remains subject to the requirements of Section 6.1. Each of Customer and Cloudera will promptly confirm in writing that it has complied with Section 10.3(iv) if requested by the other party to do so. In the event that Customer elects not to renew a Subscription for any Cloudera Products, should Customer purchase a new Subscription for the same Cloudera Products at some future time, Subscription fees will be charged for the period beginning as of the end of the Subscription Period of the original Subscriptions which Customer previously elected not to renew, plus a twenty percent (20%) reinstatement fee will be charged for the period beginning as of the end of the Subscription Period of the original subscriptions which Customer previously elected not to renew or is late on the renewal. The following Sections will survive any expiration or termination of this ESMA: 1, 2.3, 2.4, 2.5, 3.3.1, 3.3.2, 4.3, 5, 6, 7.4, 9, 10.3, 11 and 12.

11.        Third-Party Software.

11.1        Notwithstanding any terms to the contrary in this ESMA or applicable Order Forms, Customer acknowledges and agrees that: (i) the Cloudera Software contains Third-Party Software; and (ii) Customer agrees that, in addition to the terms of this ESMA and applicable Order Forms, its use is further subject to the terms of licenses applicable to the Third-Party Software. Customer hereby acknowledges that Cloudera makes a list of Third-Party Software available to Customer: (i) with Cloudera’s Documentation, (ii) in the notice file that accompanies the Cloudera Software, and/or (iii) in another reasonable manner. Further, Customer hereby acknowledges that 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.

11.2        NOTWITHSTANDING ANY OF THE TERMS IN THE THIRD-PARTY LICENSES, THIS ESMA, APPLICABLE ORDER FORMS OR ANY OTHER AGREEMENT CUSTOMER MAY HAVE WITH CLOUDERA, CLOUDERA: (I) PROVIDES THIRD-PARTY SOFTWARE TO CUSTOMER AS-IS, WITHOUT WARRANTIES OF ANY KIND; (II) 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; (III) 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 (IV) WITH RESPECT TO THE THIRD-PARTY SOFTWARE, CLOUDERA IS NOT LIABLE TO CUSTOMER 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.

12.        General Provisions.

12.1        Entire Agreement and Conflicts. This ESMA, Order Forms, and any exhibits, attachments, or addendums thereto set forth the entire agreement and understanding of the parties relating to the subject matter of this ESMA, 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. This ESMA and Order Forms hereunder will prevail over any additional, conflicting or inconsistent terms and conditions which may appear on any purchase order furnished by Customer, and any additional terms and conditions in any such purchase order will have no force or effect, notwithstanding Cloudera’s acceptance or execution of such purchase order. In the event of a conflict between the terms of any Order Form with the terms of this ESMA, the terms of the Order Form will control, but (a) only with respect to the specific Cloudera Product(s) or Services purchased under such Order Form, and (b) only if the Order Form specifically references the conflicting provisions(s) of this ESMA with the intention to supersede such provision(s). In the event of conflict between this ESMA and an Order Form, on the one hand, and the Cloudera Product & Service Data Policy, on the other hand, the terms of the Cloudera Product & Service Data Policy shall take precedence with respect to data protection policy and data protection obligations.

12.2        Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. 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.

12.3        Assignment. Neither this ESMA or any Order Forms hereunder, nor any right or duty under this ESMA or any Order Forms hereunder,  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 that Customer may assign this ESMA and/or any Order Form(s), including all rights and duties thereunder, to any of its Affiliates, upon written notice to Cloudera, provided further that such Affiliate agrees in writing to assume all obligations of Customer hereunder, and that such Affiliate is, in the sole judgment of Cloudera, adequately capitalized and credit-worthy. Cloudera may freely transfer, assign or delegate this ESMA and/or any Order Form(s) or its rights and duties under this ESMA and any Order Forms. Subject to the foregoing, this ESMA and any Order Forms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

12.4        Amendments and Waivers. No modification, addition or deletion or waiver of any rights under this ESMA or an Order Form hereunder will be binding on a party unless made in writing, clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. Except as otherwise expressly set forth herein, all rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

12.5        Notices. Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by email to a confirmed address identified in an Order Form, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on an Order Form or at such other address as may be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.  Notices provided to Cloudera will include a paper copy sent to the attention of Cloudera’s Legal Department at Cloudera’s address set forth on the applicable Order Form and with an electronic copy emailed to LegalNotices@Cloudera.com.

12.6        Force Majeure. Except for payments, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, government actions, pandemic, war, civil disturbance, terrorist acts, insurrection, sabotage, labor shortages or disputes, issues with subcontractors, transportation difficulties or shortage of energy, raw materials or equipment. In the event of any such delay, the date of delivery will be deferred for a period equal to the time lost by reason of the delay.

12.7        Section Headings. The section headings contained in this ESMA are for reference purposes only and will not affect in any way the meaning or interpretation of this ESMA.

12.8        Attorneys’ Fees. In any action to enforce this ESMA or Order Forms hereunder, the prevailing party will be entitled to recover its costs and attorneys’ fees from the non-prevailing party. 

12.9        Governing Law; Venue. This ESMA and Order Forms hereunder are made and will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law principles to the contrary. The parties agree that the venue for any dispute, obligation or action of any kind arising under this ESMA or Order Forms hereunder will be in the state or federal courts located in the County of Santa Clara, California, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the State of California for any dispute, obligation or action hereunder and agree not to commence or prosecute any suit, proceeding or claim hereunder, except in such courts.

12.10        Government Contracts. If Customer is a United States government entity, or this ESMA otherwise becomes subject to the Federal Acquisition Regulation (FAR), Customer acknowledges and agrees that the Cloudera Software and Services, and all General Enhancements and Cloudera IP provided hereunder are provided as “Commercial product,” “Commercial service,” “Commercial computer software,” “Commercial computer software documentation” and “Technical data” (as such terms are defined in FAR 2.101) with the same rights and restrictions as are customarily provided by Cloudera to its customers generally, as set forth in this ESMA. This is in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Products and Commercial Services) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation).

12.11        Severability. If any provision of this ESMA is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this ESMA will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by any Order Form hereunder 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 ESMA 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.

12.12        Counterparts. This ESMA, and any Order Form, may be executed: (i) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (ii) by the parties by exchange of signatures by electronic means or scanned and emailed signature service where legally permitted. For clarity, electronic, digital, machine-generated or images of signatures will create a valid and binding obligation of the party so signing.

12.13        Anti-Corruption Compliance. Each party will comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”), the U.K. 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 and 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 12.13.

12.14        Export. Cloudera is subject to the jurisdiction of U.S. export controls and economic sanctions laws and regulations, including the Export Administration Regulations (“EAR”) administered by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”), and sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) that prohibit or restrict the import, export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users (collectively, “Export Control Laws”).  Customer shall not use, nor allow the transfer, transmission, export or re-export of Cloudera Products or any portion thereof, technology, services or data, in violation of any Export Control Laws administered by the BIS, OFAC, or any other U.S. government agency, nor shall Customer’s use of such products, technology, services or data give rise to a violation by Cloudera of any Export Control Laws or any other applicable export control and economic sanctions laws and regulations.

12.15        Audit. During the term of this ESMA and for two (2) years thereafter, Cloudera may audit Customer’s use of Cloudera Products and Cloudera Software via diagnostic reporting and/or an independent auditor on behalf of Cloudera will have the right to audit Customer’s applicable systems, books and records, no more than once every calendar year (absent non-compliance in an immediately preceding audit), during Customer’s normal business hours and in a manner that does not unreasonably interfere with Customer’s normal business operations, to ensure Customer’s compliance with the terms and conditions of this ESMA and applicable Order Forms. Each party will pay the costs that it incurs in the course of the audit. If the audit reveals an underpayment, or a failure by Customer to fully comply with all the payment terms and conditions of this ESMA and applicable Order Forms, then Customer will immediately pay Cloudera the underpaid amount, with interest accruing at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is finally paid in full. In addition, if any audit reveals an underpayment of more than three percent (3%) for any reporting period, then, without limiting Cloudera’s other rights and remedies at law or in equity, Customer will also reimburse Cloudera for its reasonable costs incurred in conducting such audit.