CLOUDERA, INC. TRAINING TERMS

Last updated November 1, 2023
 

This agreement (the “Agreement”) applies to the purchase of Cloudera Training Services as defined herein.

1. Definitions.

“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. “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 shall will be considered an Affiliate for only such time as such interest or control is maintained.

“Cloudera” means Cloudera, Inc., a Delaware corporation.

“Customer” means the entity accepting the terms of this Agreement pursuant to an order.

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

“Training Services” means one or more of the training offerings described in Exhibit A hereto, as may be updated by Cloudera from time to time.

2. Scope. 

Cloudera agrees to perform the Training Services subject to an order submitted by Customer to either Cloudera or an authorized Cloudera reseller and accepted by Cloudera.  In the case of Training Services provided via OnDemand video, the Training Services may be provided directly by Cloudera to Customer or may be hosted by a third party service (“Third Party Product”).  All Training Services must be completed within one (1) year from the date of purchase. Training Services not completed within such period will expire and no refund will be given.

3. Term/Termination. 

This Agreement is effective on the date the terms of this Agreement are accepted by Customer (the “Effective Date”) and continues unless terminated in accordance with the terms hereinafter set forth.  Either party is free to terminate this Agreement, with or without cause, upon 30 days prior written (including via email) notice to the other party; provided, however, any such termination without cause will not affect the obligations of either party under any existing order form or ordering document for Training Services, and the terms and conditions of this Agreement and such order form or ordering document will continue in effect with respect to such Training Services until the expiration of such order form or ordering document as specified therein. In the case of cancellation or rescheduling of public and/or private Training Service courses, a cancellation/reschedule fee may apply as specified in Exhibit A. The following will survive any termination or expiration of this Agreement: (a) all definitions set forth in this Agreement; and (b) Sections 3-7, 8.2, and 9-16.

4. Compensation; Taxes.

The fees associated with the performance of the Training Services will be as set forth in the order form or other ordering document applicable to such Training Services. The Training Services fees do not include taxes, and Customer will be responsible for payment of any and all sales, use, excise, import, export, value added or similar taxes and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the provision of the Training Services under this Agreement, and any costs associated with the collection or withholding thereof, including penalties and interest. Unless otherwise specified in the applicable order form or other ordering document, all fees associated with the purchase of Training Services and Training Credits will be invoiced at the time of purchase; with the exception of fees for private course Training Services which will be invoiced upon completion of such course. The payment schedule for multi-year Training Service purchases will be as specified in the applicable order form or other ordering document applicable to such Training Services. Customer must pay all invoices within thirty (30) days of the date of the invoice, or as otherwise agreed in writing between Customer and the Cloudera authorized reseller (as applicable). All payments due under this 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 U.S. Dollars. Customer will withhold taxes on payments to Cloudera if required to do so by any government and will pay such taxes to the appropriate tax authority. Customer will utilize its best efforts and cooperate with Cloudera to make sure that taxes withheld are minimized to the extent possible under the applicable law and/or tax treaty and will provide all the necessary documents to enable Cloudera to claim the withheld tax refund as a United States tax credit.

5. Confidential Information.

“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party or its Affiliate (the “Disclosing Party”) to the other party or its Affiliate (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that is: (a)  characterized as Confidential Information at the time of disclosure or within a reasonable time after disclosure; or (b) 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. The Receiving Party will, during the term of this Agreement and for three years thereafter, use the same degree of care to maintain the confidence of the Confidential Information of the Disclosing Party that it uses to maintain the confidence of its own Confidential Information, but in no event less than reasonable care. Notwithstanding the foregoing, where the Confidential Information disclosed is:  (a) the Disclosing Party’s trade secret, the Receiving Party will treat such information as Confidential Information for as long as the Confidential Information remains the Disclosing Party’s trade secret; or (b) required by law to be protected for a duration beyond that provided hereunder, the Receiving Party will maintain such information in confidence for the duration required by law.  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 Agreement. 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 Agreement. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) 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 (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  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. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 5. 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 of the other party of this Section 5.

6. Cloudera Data Policies; Personally Identifiable Information.

Customer will adhere to and agrees to be bound by the Data Policy and the Privacy Policy, located at http://www.cloudera.com/legal/policies.html, as such policies may be updated by Cloudera from time to time (the “Data Policy” and the “Privacy Policy,” respectively).  Subject to applicable law, in connection with the performance of this Agreement and Customer’s receipt of the Training Services: (i) Cloudera agrees that it will not require Customer to deliver to Cloudera any personally identifiable information (as defined by the National Institute of Standards and Technology) (“PII”); and (ii) Customer agrees not to deliver any PII to Cloudera; provided, however, that Customer’s Account Data (as defined in the Data Policy) may include PII, and will be governed by the Data Policy.  

7. Proprietary Rights.

All works of authorship, inventions, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Cloudera, solely or in collaboration with others, in the course of performing the Training Services 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 under this Agreement.  In addition, Customer may not make recordings of any kind of the Training Services provided under this Agreement. Notwithstanding the foregoing, Customer participants attending the Training Services may retain one copy of the Training Materials for personal use only.

8. Warranty; Disclaimer.

8.1 Warranty. 

Cloudera warrants that it will perform the Training Services in a professional manner and consistent with industry standards.  For any Training Services that do not conform to this warranty, Customer must notify Cloudera within five (5) days of the delivery of any non-conforming Training Services, and, as Cloudera’s sole obligation and Customer’s exclusive remedy, at Cloudera’s option: (i) Cloudera will re-perform such non-conforming Training Services at no additional charge to Customer; or (ii) Cloudera or the authorized Cloudera reseller (as applicable) will refund the fees Customer paid to Cloudera or the authorized reseller (as applicable) for the portion of the Training Services that do not conform to this warranty.

8.2 Disclaimer.

EXCEPT AS PROVIDED IN THE FOREGOING SECTION 8.1, CLOUDERA MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT AND THE TRAINING SERVICES PROVIDED HEREUNDER OR THIRD PARTY PRODUCTS. 

9. Limitation of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT WILL CLOUDERA’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CLOUDERA UNDER THE ORDER GIVING RISE TO SUCH LIABILITY. 

10. Independent Contractor.

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.

11. Assignment.

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 (which will not be unreasonably withheld).  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.

12. Notices.

Any notice required or permitted by this Agreement will be in writing and will be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile if such notice is addressed to the other party at such party’s address or facsimile number as set forth below, or as subsequently modified by written notice in accordance with the terms in this Section.

13.  Governing Law; Venue.

This Agreement is made and will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law principles.  Exclusive jurisdiction and venue of any actions connected with this Agreement will be in the state and federal courts located in Santa Clara, California.

14. Force Majeure.

Except for payments due under this Agreement, 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, war, civil disturbance, insurrection, sabotage, labor shortages or disputes, failure or delay in delivery by a party’s suppliers or 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.

15. Amendments and Waivers.

No modification, addition or deletion or waiver of any rights under this Agreement 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. 

16. Severability. 

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 and 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.

17. Counterparts.

This Agreement 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 through facsimile 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 executing party.

18. Entire Agreement and Conflicts.

This Agreement, and all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. This Agreement shall 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 shall have no force and effect, notwithstanding Cloudera’s acceptance or execution of such purchase order.