CLOUDERA, INC. ONE-TIME RESELLER AGREEMENT
(ON-LINE VERSION)
Last updated: 03/31/2025
THIS ONE-TIME RESELLER AGREEMENT (“AGREEMENT”) IS BETWEEN YOU (“YOU” OR “RESELLER”) AND CLOUDERA, INC., A DELAWARE COMPANY LOCATED AT 5470 GREAT AMERICA PARKWAY, SANTA CLARA, CA 95054 AND ITS AFFILIATES (“CLOUDERA”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE AN 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.
BY ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, RESELLER AGREES THAT THE RESALE OF THE CLOUDERA PRODUCTS LISTED IN THE ORDER FORM TO THE END USER IDENTIFIED IN THE ORDER FORM IS GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
All references in this Agreement to the “purchase” or “sale” of the Cloudera Software will mean, with respect to all such Cloudera Software that is covered by Intellectual Property Rights owned by Cloudera (or to which Cloudera has rights), the acquiring or granting, respectively, of a license to use such Cloudera Software, and to exercise any other rights pertaining to such Cloudera Software which are expressly set forth herein.
- Definitions. For the purposes of this Agreement, the following terms will 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 with respect to which a party is under common control with such 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 “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.
1.3 “Cloudera Product & Service Data Policy” is Cloudera’s policy which describes Cloudera’s collection, use, storage, and otherwise processing of data related to the End Customer (including any Customer Affiliate) and to the End 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.
1.4 “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 in accordance with the terms of the End Customer Agreement, (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 in accordance with the terms of the End Customer Agreement, (iii) Cloudera Professional Services, and/or (iv) Cloudera Training Packages, all as set forth in the Order Form.
1.5 “Cloudera Professional Services” means the Cloudera professional and/or consulting services offerings performed or to be performed by Cloudera, as may be set forth in the Order Form.
1.6 “Cloudera Software” means the software that is included in the Cloudera Products, including software that is distributed to End 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 End 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 “Cloudera Training Packages” means Cloudera training services as may be set forth in the Order Form, including all Training Materials. For purposes o Cloudera Training Packages, “Training Materials” means the course slides, OnDemand videos and other documentation including the training exercises and labs provided in conjunction with Cloudera Training Packages.
1.8 “End Customer” or “End User” means the end user entity named on the Order Form purchasing the Cloudera Product(s) for its internal use, and not for resale, lease, loan or redistribution.
1.9 “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.
1.10 “Metrics” means the license usage, subscription metrics, and/or support entitlement metrics necessary to meter End 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 End 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: https://www.cloudera.com/legal/commercial-terms-and-conditions/cloudera-licensed-metrics.html.
1.11 “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 the End Customer Agreement despite subsequent modifications by Cloudera prior to distribution to Customer.
1.12 “Order Form” means the order form for Cloudera Products to which this Agreement is attached.
1.13 “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.
1.14 “Services” means collectively the Cloudera Professional Services and Cloudera Training Packages purchased by Reseller for the End Customer under the Order Form as stand-alone services or as part of a Subscription.
1.15 “Subscription” means a Cloudera offering that provides the End 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.
1.16 “Subscription Period” means the period of time identified in the Order Form, for which Reseller is purchasing for the End Customer, and the End Customer will be entitled to the benefits of, the applicable Subscription.
1.17 “Support Services” means the technical support and software maintenance provided by Cloudera and included as part of Subscriptions for the various Cloudera Products, as further described in the End Customer Agreement.
1.18 “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 Reseller for the End Customer. Third-Party Software includes Open Source Software.
1.19 “Work Product” means all tangible materials (including but not limited to drawings and documentation) delivered by Cloudera to the End Customer in the course of Cloudera’s performance of Cloudera Professional Services that are created for the End Customer as set forth in an Order Form for Cloudera Professional Services; provided, however, that Work Product expressly excludes any and all: (i) Pre-Existing Property; (ii) Cloudera Training Materials; (iii) related documentation; (iv) improvements, modification, 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, 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 the End Customer’s Confidential Information.
- Grants; Restrictions.
2.1 Cloudera Products. Subject to the terms and conditions of this Agreement and the Order Form, Cloudera hereby grants to Reseller, during the Term, a non-exclusive, limited and revocable license to market, promote, offer to sell, distribute and sell the Cloudera Software to the End Customer for the duration of the Subscription Period.
2.2 Cloudera Services. Subject to the terms and conditions of this Agreement and the Order Form, Cloudera hereby grants to the Reseller, during the Term, a non-exclusive, limited and revocable license to market, promote, offer to sell, distribute and sell the Cloudera Professional Services and Cloudera Training Packages to the End Customer.
- Orders Forms; End Customer Agreements; Delivery; Support.
3.1 End Customer Orders. As between the parties, Reseller will be solely responsible for: (i) soliciting and procuring an applicable order from the End Customer for the sale of Cloudera Products; and (ii) determining the prices at which Reseller will sell the Cloudera Products to the End Customer.
3.2 End Customer Agreement. Prior to the End Customer receiving access to Cloudera Products that it has purchased through Reseller, Reseller will require the End Customer to affirmatively accept and/or execute, as applicable, Cloudera’s enterprise subscription master agreement and/or a separate agreement as may be required for any specific Cloudera Product, e.g., Cloudera Online Services, Cloudera Training Packages, or Cloudera Professional Services, as applicable (each an “End Customer Agreement”). Each End Customer Agreement will be made available to the End Customer via Cloudera’s End Customer website portal (the “Customer Portal”) for affirmative acceptance or provided separately by Reseller to End Customer for execution. Reseller will ensure that the End Customer receives instructions for how to access and accept the End Customer Agreement. Reseller will cooperate with any requests from Cloudera with respect to Cloudera’s procurement or enforcement of the End Customer Agreement. Cloudera reserves the right, at any time and in Cloudera’s sole discretion, to terminate any End Customer Agreement pursuant to the terms in the applicable End Customer Agreement.
3.3 Delivery of Cloudera Products. Following the execution of this Agreement by Cloudera and Reseller and Cloudera’s receipt of Reseller’s purchase order, Cloudera will: (i) furnish to Reseller any registration information for Reseller to provide to the End Customer (including, without limitation, any hyperlinks to the Customer Portal) so as to enable such End Customer to receive access to, and/or to download, the Cloudera Software; and/or (ii) provide the End Customer with the Cloudera Training Packages or Cloudera Professional Services pursuant to the Order Form.
3.4 End Customer Warranties and Support Services. Cloudera will provide its standard Support Services to the End Customer as set forth in the terms of the End Customer Agreement. Cloudera’s warranty obligations to the End Customer are limited to those obligations, if any, in the End Customer Agreement. Reseller will: (i) promptly transfer to Cloudera any Support Service inquiries from the End Customer received by Reseller for resolution by Cloudera; and (ii) promptly report to Cloudera all complaints from the End Customer relating to the Cloudera Products (including any warranty claims). Notwithstanding the foregoing, Reseller will cooperate with Cloudera in addressing any End Customer complaints concerning the Cloudera Products and will take any necessary action to resolve such complaints as may be requested by Cloudera.
- Compliance with Laws.
4.1 Export Control Laws. Reseller acknowledges that the laws and regulations of the United States restrict the export and re-export of software, commodities and technical data of United States origin, which laws and regulations include, but are not limited to, 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”). Reseller will comply with all Export Control Laws in dealing with the Cloudera Products. Reseller represents and warrants that it will not sell, export (including "deemed" exports), re-export, transship, transfer, transmit, divert or otherwise dispose of the Cloudera Products, directly or indirectly to any person, firm, entity, or country prohibited by applicable Export Control Laws, or for any purpose prohibited by Export Control Laws, including, without limitation, nuclear, chemical or biological weapons proliferation development of missile technology, or for use in the oil and gas industry, in particular in connection with any deep-water, Arctic offshore or shale projects. Reseller will not transfer or provide the Cloudera Products to any party for a military purpose or end use. Reseller represents that it is not an entity listed on OFAC’s list of Specially Designated Nationals, Sectoral Sanctions Identification List, or any other export control lists. Reseller will inform relevant Reseller personnel of the necessity to comply with these restrictions.
4.2 Anti-Corruption Compliance. Reseller will comply with all applicable anti-corruption laws, including, without limitation, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act. Reseller represents and warrants 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 Reseller or Cloudera in obtaining or retaining an improper business advantage. Reseller will promptly notify Cloudera if it receives a request to take any action which may violate its obligations under this Section. Reseller agrees to make its books and records available for review by Cloudera to confirm Reseller’s compliance with its obligations under this provision.
4.3 Compliance with Privacy and Data Protection Laws. Reseller will comply with all applicable data privacy, data protection and data security laws and regulations in its performance under this Agreement, including without limitation, and to the extent applicable, the General Data Protection Regulation (“GDPR”).
4.4 Compliance with Laws Prohibiting Human Trafficking. Reseller will: (i) comply with the Modern Slavery Act 2015 and any other similar laws, regulations or directives which apply to its business or in the place where the Agreement is performed; and (ii) take reasonable steps to ensure that there is no modern slavery or human trafficking activity in its supply chain or in any part of its business.
4.5 General Compliance. Reseller will furnish to Cloudera any information and take any action requested by Cloudera to enable Cloudera to comply with applicable laws, orders and regulations related to this Agreement and/or the Cloudera Products. Reseller will not, by itself or with or through others, participate in any illegal, deceptive, misleading or unethical practices or activities in connection with or related to Cloudera Products or Cloudera, or take any other action which may be detrimental to the Cloudera Products or Cloudera.
Financial Considerations. Cloudera will issue invoices to Reseller upon execution of the applicable Order Form for the Cloudera Products (including any fees associated with prepay credits related to Cloudera Online Services) purchased by Reseller directly from Cloudera for resale to the End Customer. Reseller will pay to Cloudera the total fees due as set forth in the Order Form. Except for any specific provisions in the End Customer Agreement allowing for early termination, the Subscription Period is non-cancelable and non-terminable, and Cloudera will not be obligated to issue any refunds for Cloudera Product fees paid (except as expressly provided in the End Customer Agreement). Unless otherwise set forth in the Order Form or agreed otherwise by the parties in writing, Reseller agrees to pay all amounts set forth on an invoice within 30 days of the date of the invoice, regardless of whether Reseller has invoiced or received payment from the End Customer for the Cloudera Products ordered. Interest on any late payments will accrue 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. 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 the currency as set forth in the Order Form. The fees for Cloudera Products do not include taxes. Reseller 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 Cloudera Products under this Agreement, exclusive of income taxes based on Cloudera’s net income. Reseller will pay any costs associated with the collection of Transaction Taxes, including penalties and interest. If Reseller is required to pay any withholding tax, charge or levy with respect to payments to Cloudera (“Withholding Taxes”), Reseller 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 Reseller to enable Reseller to pay the lowest legal withholding rate by providing any available tax documents in its possession to support the lowest applicable withholding rate.
- Confidentiality; Data Protection.
6.1 “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 this Agreement (whether before, on or after the Effective Date) that: (i) is characterized as Confidential Information at the time of disclosure or within a reasonable time after disclosure; or (ii) 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 includes, but is not limited to, Cloudera Products, components of business plans, financial plans, know-how, customer information, strategies and other similar information. Further, as between the parties, the End Customer information will be deemed the Confidential Information of Cloudera. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
6.2 Period of Confidentiality. The Receiving Party will, during the Term of this Agreement, and for three (3) years thereafter, use the same degree of care to maintain the confidentiality of the Confidential Information of the Disclosing Party that it uses to maintain the confidentiality of its own Confidential Information, 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.
6.3 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 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. 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.
6.4 Remedy for Breach. The parties agree that damages may be an inadequate remedy in the event of a breach of this Section 6. Therefore, the parties agree that, in addition to any other rights and remedies otherwise available to a party, such party may seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of this Section 6.
6.5 Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Reseller to Cloudera with respect to Cloudera or any of the Cloudera Products (collectively, “Feedback”) will constitute Confidential Information of Cloudera. Further, Cloudera will be free to use, disclose, reproduce, license, distribute and otherwise exploit the Feedback provided to Cloudera as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6.6 Data Protection. The Cloudera Product & Service Data Policy, as may be updated by Cloudera from time to time, 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.
- Ownership; Reservation of Rights. As between the parties and subject to the licenses granted by Cloudera under Section 2 of this Agreement, Cloudera and its licensors own and retain all right, title and interest in and to: (i) the Cloudera Software (including any associated documentation); (ii) the Cloudera Online Services; (iii) the Cloudera IP; (iv) the Pre-Existing Property; (v) the General Enhancements; (vi) the Cloudera Training Packages (including any associated documentation); (vii) Cloudera Professional Services and all Work Product resulting therefrom; (viii) all Cloudera logos and trademarks included in any of the foregoing; (ix) all materials (including, but not limited to, software, prototypes, drawings and documentation) and any ideas, designs, techniques, inventions, discoveries, improvements, creative works, any other works discovered, prepared or developed by Cloudera in the course of performing any Services; and (x) any and all Intellectual Property Rights embodied in the foregoing including any updates, patches or fixes to, or modifications or derivative works of, the foregoing.
Cloudera reserves all rights not expressly granted in this Agreement, and no licenses are granted by Cloudera to Reseller under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
- Warranties; Disclaimer.
8.1 Warranties. Each party warrants that as of the Effective Date: (i) it is validly existing and 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 Agreement; (iii) the person signing this Agreement (or an Order Form referencing this Agreement) on its behalf has been duly authorized and empowered to enter into this Agreement; and (iv) this Agreement is valid, binding and enforceable against it in accordance with its terms. In addition, each party warrants that: (i) it will fulfill all of its obligations under this Agreement with due care and in a professional manner expected of a competent provider in its field of business and in accordance with all applicable federal, national, state, provincial, municipal and local laws, regulations, rules, judicial decrees, decisions and judgments with respect to such party’s conduct of business; (ii) it will not make any representations or warranties on the other party’s behalf; and (iii) it will not use deceptive, misleading, illegal or unethical practices in fulfilling its obligations under this Agreement.
8.2 No Unauthorized Warranties. Reseller will not make or extend on behalf of Cloudera any written or oral representation or warranty with respect to the Cloudera Products except as may be contained in the End Customer Agreement. Reseller will defend, indemnify and hold harmless Cloudera from any claims, damages, liability, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with any such unauthorized representation or warranty.
8.3 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, 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 EXPRESS WARRANTY SET FORTH IN THIS SECTION 8 FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification Obligations.
9.1 Cloudera Indemnification Obligations.
9.1.1 Subject to the terms and conditions of this Section 9, Cloudera agrees, at its own expense, to pay all Damages (as defined below) and defend Reseller from (or at Cloudera's option, settle) any claim instituted by a third party and asserted against Reseller that the Cloudera Software (in the form delivered by Cloudera to the End Customer) (the “Cloudera Indemnified Product”), when used in accordance with the applicable Cloudera Indemnified Product documentation, infringes any United States patent, copyright, trade secret, or other proprietary right of a third party ("IP Claim"), provided that Reseller: (i) promptly notifies Cloudera in writing of any such IP Claim; (ii) gives Cloudera sole control over the investigation, preparation, 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 against Reseller (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 it does not approve in writing prior to such settlement.
9.1.2 Following notice of an IP Claim or any facts which may give rise to such IP Claim, Cloudera may, in its sole discretion and at its option: (i) procure for Reseller the right to continue to exercise the license granted to Reseller under this Agreement for the Cloudera Indemnified Product; (ii) replace the Cloudera Indemnified Product; or (iii) modify the Cloudera Indemnified Product to make it non-infringing. If Reseller is enjoined in a non-appealable judgment in regard to the Cloudera Indemnified Product, and Cloudera determines that it is not commercially reasonable to perform any of alternatives (i) through (iii), Cloudera will terminate the Agreement.
9.1.3 In no event will Cloudera have any obligations under this Section 9.1 or any liability for any IP Claim if the IP Claim is caused by, or results from: (i) any negligent or willful misconduct of Reseller; (ii) the combination or use of the Cloudera Indemnified 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; (iii) modification of the Cloudera Indemnified Product by anyone other than Cloudera if such IP Claim would have been avoided by use of the unmodified Cloudera Indemnified Product; (iv) continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; (v) use of the Cloudera Indemnified Product in a manner not strictly in accordance with this Agreement or the End Customer Agreement; (vi) Cloudera's modification of the Cloudera Indemnified Product in compliance with Reseller’s or End Customer's specifications; (vii) use of other than Cloudera's most current release of the Cloudera Indemnified Product if the IP Claim would have been avoided by use of the most current release, provided Reseller or End Customer is given an opportunity to use such most current release for no additional fee; and (viii) any Third-Party Software (including any Open Source Software). THIS SECTION 9.1 STATES CLOUDERA'S ENTIRE LIABILITY AND RESELLER'S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR ALLEGATIONS BY RESELLER OR A THIRD PARTY.
9.2 Reseller Indemnification Obligations. Reseller, at its sole expense, will defend Cloudera and its directors, officers and employees (each a “Cloudera Indemnitee”) from and against any and all third party claims, and indemnify any Cloudera Indemnitee from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) that are finally awarded by a court of competent jurisdiction, or agreed to in a settlement by Reseller, resulting from or arising in connection with: (i) any Reseller product infringing any Intellectual Property Rights of any third party; (ii) any breach by Reseller of any of its representations or warranties hereunder; or (iii) any willful misconduct or fraud by Reseller in the performance of its obligations hereunder. Reseller’s obligations under this Section 9.2 are conditioned upon Cloudera: (i) giving prompt notice of the claim to the Reseller once Cloudera becomes aware of the claim; (ii) granting sole control of the defense and settlement of the claim to the Reseller (except that Cloudera’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to Cloudera); and (iii) providing reasonable cooperation to the Reseller and, at the Reseller’s request and expense, assistance in the defense or settlement of the claim.
9.3 Notwithstanding any terms to the contrary in this Agreement, the indemnified party’s failure to give notice to the indemnifying party within a reasonable period of time following the commencement of any claim under this Section 9 will relieve the indemnifying party of any liability to the indemnified party under this Section 9 only to the extent that such failure materially prejudices the indemnifying party’s ability to defend such claim.
- Limitation of Liability.
10.1 (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, 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 CLOUDERA PRODUCTS, 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 AGREEMENT AND/OR THE CLOUDERA PRODUCTS WILL NOT EXCEED THE TOTAL AMOUNT PAID TO CLOUDERA BY RESELLER FOR THE CLOUDERA PRODUCTS AS SPECIFIED IN THE ORDER FORM UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM.
10.2 EXCLUSIONS. THE LIMITATIONS OF LIABILITY IN SECTION 10.1 DO NOT APPLY TO: (I) BREACHES OF SECTIONS 2.1, 2.2 OR 7; (II) RESELLER’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION OBLIGATIONS); OR (III) CLAIMS ALLEGING FRAUD OR WILLFUL MISCONDUCT. THE LIMITATIONS OF LIABILITY IN SECTION 10.1 (B) DO NOT APPLY TO: (I) CLAIMS FOR NON-PAYMENT; OR (II) CLOUDERA’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION OBLIGATIONS).
10.3 THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Term and Termination; Effect of Termination.
11.1 Term. Unless terminated earlier as permitted below, the term of this Agreement will commence on the Effective Date and continue through the end of Cloudera’s delivery of the Cloudera Products set forth in the Order Form (“Term”).
11.2 Termination. Either party may terminate the Order Form and this Agreement for cause: (i) if the other party materially breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (ii) 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.
11.3 Effect of Termination. Upon any termination of the Order Form and this Agreement: (i) all rights and licenses granted to a party under this Agreement will immediately cease; (ii) Reseller will immediately pay to Cloudera all amounts due; (iii) except where Reseller terminates for cause pursuant to Section 11.2, Cloudera reserves the right to invoice Reseller for any future payments set forth in the Order Form, and will not be obligated to issue any refunds for fees paid for Cloudera Products; and (iv) each of Reseller 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 the 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 and are used for no other purpose. Each of Reseller and Cloudera will immediately confirm in writing that it has complied with Section 11.3(iv) if requested by the other party to do so. The following Sections will survive any expiration or termination of this Agreement: 1, 5, 6, 7, 8.2, 8.3, 9.2, 9.3, 10, 11.3, and 12.
General Provisions.
12.1 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.
12.2 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Reseller, 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.
12.3 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.
12.4 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, 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 the Order Form or at such other address as may be furnished in writing by either party to the other party in accordance with this Section 12.4. Such notice will be deemed to have been given as of the date it is delivered. Notices to Cloudera will include a paper copy sent to Cloudera’s Legal Department at Cloudera’s address on the Order Form and with an electronic copy emailed to LegalNotices@Cloudera.com.
12.5 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, 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.
12.6 Section Headings. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
12.7 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 to the contrary. The parties agree that the venue for any dispute, obligation or action of any kind arising under this Agreement will be in 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.
12.8 Construction. This Agreement will be fairly interpreted in accordance with its terms and, as each party acknowledges the benefit of counsel in the drafting and negotiation thereof, will not be construed in favor of or against any party.
12.9 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.
12.10 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’ exchange of signatures by electronic means or scanned and emailed signature service where legally permitted. For clarity, an electronic, digital, or machine-generated or images of signatures will create a valid and binding obligation of the party so signing.
12.11 Entire Agreement; Conflicts. This Agreement, the Order Form and any exhibits, attachments, or addendums thereto set forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement, 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 Agreement and the Order Form will prevail over any additional, conflicting or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Reseller, and any additional terms and conditions in any such purchase order or document will have no force or effect, notwithstanding Cloudera’s acceptance or execution of such purchase order or document. In the event of a conflict between the terms of the Order Form with the terms of this Agreement, 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 Agreement with the intention to supersede such provision(s). In the event of conflict between this Agreement and the 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.
12.12 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees from the non-prevailing party.
Below are links to translations of this Cloudera One-Time Reseller Agreement (“OTRA”) that are provided as a convenience. Unless otherwise agreed to in writing with Cloudera, Inc. the English version of the OTRA is the binding, governing version.