Software Subscription Agreement: Definition & Sample

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What is a Software Subscription Agreement?

A software subscription agreement is a contract between a company and its customer that allows the customer to use software for an agreed-upon amount of time, often with updates or upgrades included. A typical software subscription agreement consists of the type of licensing rights granted, when the license starts and ends, how many licenses will be issued, and whether any restrictions apply.

In contrast to a perpetual license which can be used indefinitely without paying additional fees after an initial purchase price has been paid in full, most subscriptions have periodic charges over time. Software subscriptions may also include maintenance agreements where companies provide bug fixes and security patches. In addition, some software providers offer free trials so customers can try out products before making their purchase decision, while others provide discounts on upgrading from one version to another.

Common Sections in Software Subscription Agreements

Below is a list of common sections included in Software Subscription Agreements. These sections are linked to the below sample agreement for you to explore.

Software Subscription Agreement Sample

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

This Subscription Agreement (this “ Agreement ”), CW1985661, is made and entered into as of April 25, 2014 (the “ Effective Date ”) by and between Cloudera, Inc., a Delaware company located at 1001 Page Mill Rd, Bldg 2, Palo Alto, CA 94304-1008, (“ Cloudera ”)and Intel Corporation, and its Affiliates, a Delaware company located at 2200 Mission College Blvd., Santa Clara, California, 94054 (collectively, “ Customer ”).

1 Definitions . For the purposes of this Agreement, including exhibits hereto, the following terms will have the following meanings:

1.1 “ Affiliate ” means a business entity now or hereafter controlled by, controlling or under common control with a party. Control exists when an entity owns or controls directly or indirectly 50% or more of the outstanding equity representing the right to vote for the election of directors or other managing authority of another entity.

1.2 “ Cloudera Open Source Distribution ” means the open source code components set forth in the applicable Order Form for a Subscription Period.

1.4 “ Cloudera Software ” means Cloudera’s proprietary software components set forth in the applicable Order Form for a Subscription Period.

1.5 “ 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.

1.6 “ Node ” means any computer apparatus running no more than one each of a Hive, HDFS, HBase, MapReduce, Oozie, Sqoop2, Impala, Search, Zookeeper or HCatalog process daemon, and addressable by a unique network identifier such as a Fully Qualified Domain Name or Internet Protocol (IP) address.

1.7 “ Order Form ” means the document provided by Cloudera and agreed to by Customer indicating Cloudera Products and Professional Services purchased, quantity, price and Subscription Period. The initial Order Form is attached hereto as Exhibit C.

1.8 " Purchase Order ” is Customer’s document setting forth specific Cloudera Products and Professional Services to be rendered.

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

1.9 “ Subscription Period ” means a one year period, or another term as may be set forth in the applicable Order Form(s). The initial Subscription Period commences upon the Effective Date unless otherwise stated on a Purchase Order or Order Form.

1.10 “ Third Party Open Source Software ” means the copyrighted, patented and/or otherwise legally protected open source software of third parties that may be incorporated in the Cloudera Products as set forth http://www.cloudera.com/content/cloudera-content/cloudera-docs/SecurityBulletins/Third-Party-Licenses/Third-Party-Licenses.html.

(i) Cloudera Software . Subject to the terms and conditions of this Agreement, Cloudera grants to Customer and its Affiliates a worldwide, non-exclusive, non-transferable, non-sublicensable, irrevocable during a Subscription Period (except in the event of Customer breach of license grant) limited license to access, use and reproduce the Cloudera Software as identified in the applicable Order Form solely for Customer’s internal purposes, whether on premises or off in a hosted cloud-based environment, and includes enabling Customer’s external-facing Big Data Platform that provides a hosted sandbox-type cluster for third party, external developers to use the Cloudera Software for development and test purposes (“External Dev/Test Users”). Intel agrees that External Dev/Test Users access to the Cloudera Software will be provided subject to an agreement between Intel and the External Dev/Test Users that: (1) contains warranty disclaimers no less protective than those in this Agreement; (2) disclaims all liability for Cloudera and (3) states the software is provided on an “as is” basis. Intel will indemnify and defend Cloudera for claims or demands against Cloudera brought by the External Dev/Test Users who access the Cloudera Software, excluding claims or demands for intellectual property infringement.

(ii) Cloudera Open Source Distribution . Subject to the terms and conditions of this Agreement, Cloudera grants Customer and its Affiliates a non-exclusive, non-transferable, non-sublicensable, irrevocable during a Subscription Period (except in the event of Customer breach of license grant) limited license to access, use, and reproduce the Cloudera Open Source Distribution as identified in the applicable Ordering Form solely for Customer’s internal purposes which include enabling Customer’s external-facing Big Data Platform as set forth in 2.1(i).

2.2 Restrictions . Except as otherwise expressly set forth in this Agreement, Customer may not: (i) modify, disclose, alter, translate or create derivative works of the Cloudera Products; (ii) license, sublicense, resell, distribute, lease, rent, lend, externally transfer, or otherwise dispose of the Cloudera Products; (iii) use the Cloudera Products, or allow the external transfer, transmission, export or re-export of the Cloudera Products or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; or (iv)

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

cause or permit any other party to do any of the foregoing. In addition, Customer will not remove, alter or obscure any proprietary notices in the Cloudera Products including copyright notices, or permit any other party to do so.

2.3 Ownership and Reservation of Rights . As between the parties and subject to Section 2.1, Cloudera will own all right, title and interest in and to (i) the Cloudera Software, (ii) the Cloudera Open Source Distribution, (iii) all modifications to and derivative works of the Cloudera Software, the Cloudera Open Source Distribution made by Cloudera; and (iv) any and all Intellectual Property Rights embodied in the foregoing. Cloudera reserves all rights not expressly granted in this Agreement, and no licenses are granted by Cloudera to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

3.1 Delivery and Acceptance . Upon Cloudera’s acceptance of Customer’s Purchase Order, Cloudera will, at its expense, make the Cloudera Products available for download. The Cloudera Products will be deemed delivered when the electronic download is available. For a period of thirty (30) days following initial delivery, Customer will have the right to test the Cloudera Products to ensure that the Cloudera Products conform to all material specifications in the applicable documentation as made available by Cloudera on its public web site. If no material nonconformities are reported to Cloudera during such thirty (30) day period, the Cloudera Products will be deemed accepted (“Acceptance”).

3.2 Support . Cloudera will provide the support and maintenance services as set forth in Exhibit A with respect to the Cloudera Products (the “ Support Services ”).

(i) Performance . Cloudera will perform the Support Services in a timely and professional manner using qualified and experienced personnel.

(ii) Cooperation . Customer will cooperate in good faith with Cloudera in the performance of the Support Services including, but not limited to providing any reasonably requested assistance and information.

(iii) Support Contacts . Customer will ensure that its personnel who contact Cloudera are: (a) knowledgeable about the operation of the Cloudera Products and the hardware on which the Cloudera Products are installed; and (b) qualified and trained with respect to the Cloudera Products.

(iv) Supported Versions . Cloudera will provide support on the versions of Cloudera Products according to the Support Lifecycle Policy as set forth at: http://www.cloudera.com/content/support/en/support-info/support-lifecycle-policy.html. Cloudera will provide 30 days written notice in advance of any material changes to the policy above becoming applicable to Customer.

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

(v) Exclusions . The Support Services do not include: (a) the installation or removal of the Cloudera Products; (b) initial or additional use case design; (c) architecting custom solutions or performance tuning; (d) architectural design reviews; (e) visits to Customer’s site; or (f) training. Cloudera has no obligation to correct any problems with the Cloudera Products or any issues resulting from: (w) use of the Cloudera Products not in accordance with the license agreement or the user documentation applicable thereto; (x) defects or errors in any program or program version not specified by Cloudera as Cloudera Products; (y) defects or errors in any hardware; or (z) any acts or omissions of Customer.

4.1 Payments . Customer will pay to Cloudera the total fees due for the applicable Subscription Period. Customer shall make payment within forty-five (45) days, after Customer’s receipt of the proper original invoice. In the event that Customer elects to add Nodes during the Subscription Period that exceed the quantity of Nodes included in a subscription, fees for such nodes are calculated for the period commencing immediately upon installation of the Cloudera Products, pro-rated such that the Subscription Period of the additional Nodes will terminate on the same date as the existing licensed Nodes. The fees do not include taxes. Notwithstanding any terms to the contrary in this Agreement: (i) Cloudera, at its sole discretion, may modify its pricing during any Subscription Period, such pricing modifications will not apply until the renewal Subscription Period commences. In any event, the per-Node fees paid by Customer to Cloudera during the Subscription Period for any expansion Nodes will not exceed the per Node fees as detailed within Exhibit C, and the per-Node fees paid [***]; and (ii) Cloudera will not be obligated to issue any refunds for Subscription Fees paid (except as provided in Section 7.1 or Section 9.2).

4.2 Payment Terms . 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 pay 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 Cloudera Products and the provision of the Support Services under this Agreement.

5.1 Confidentiality . “ Confidential Information ” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “ Disclosing Party ”) to the other party (the “ Receiving Party ”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that is clearly identified as Confidential Information at time of disclosure. The Receiving Party will, during the term of this Agreement and for three years thereafter, maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. 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, including, without limitation, collaboration with product groups inside Customer. In addition, the Receiving Party: (i) 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; and (ii) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or consultants have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 5. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement 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; (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, Receiving Party provides to 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 or practical under the circumstances, prompt notice of such disclosure. The parties agree that damages would be an inadequate remedy in the event of a breach of this Section 5.1. 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 of the other party of this Section 5.1

6.1 General Representations and Warranties . Each party represents and warrants that: (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 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.

6.2 Software Warranties : Cloudera represents and warrants as follows: (1) for a period of ninety (90) days following Acceptance, the Cloudera Products will perform in accordance with the documentation applicable thereto in all material respects; (ii) [***],

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

(iii) in the form as delivered to Customer, to the best of Cloudera’s knowledge based on scanning with best in class, up to date, commercially available anti-virus software, the Cloudera Products are free from malware such as viruses, bombs, worms, backdoors or Trojan horses, and (iv) Cloudera represents and warrants that to the best of its knowledge, based on scanning with commercially available best in class code-scanning software, the list of Third Party Open Source Licenses provided at http://www.cloudera.com/content/cloudera-content/cloudera-docs/SecurityBulletins/Third-Party-Licenses/Third-Party-Licenses.html is true and complete.

6.3 Disclaimer . EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6.1 AND 6.2, CLOUDERA AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE CLOUDERA PRODUCTS, THE THIRD PARTY SOFTWARE, AND/OR THE SUPPORT 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 AND THE THIRD PARTY SOFTWARE BEING FREE FROM BUGS, ERRORS, OR OMISSIONS. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

7.1 Cloudera Indemnification Obligations . Cloudera, at its sole expense, will defend and indemnify Customer from and against any damages, settlements, liabilities, costs and expenses (including, but not limited to, reasonable attorney fees) (“ Claim ”) as a result of the use of the Cloudera Products (in the form delivered to Customer by Cloudera) or the Work Product, as applicable, infringing any Intellectual Property Rights of any third party, provided that Customer: (i) gives prompt notice of the Claim to Cloudera; (ii) grants sole control of the defense and settlement of the Claim to Cloudera (except that Customer’s prior written approval will be required for any settlement that reasonably can be expected to require an admission of liability, or an affirmative obligation of or result in any ongoing liability to Customer); and (iii) provides reasonable cooperation to Cloudera and, at Cloudera’s request and expense, assistance in the defense or settlement of the Claim. Customer will be entitled to participate in the defense, at Customer’s expense, with counsel of its choosing. In the event of a Claim pursuant to this Section 7.1, Cloudera may, at Cloudera’s option and at Cloudera’s expense: (a) obtain for Customer the right to continue to exercise the license granted to Customer under this Agreement; (b) substitute an equivalent non-infringing product; (c) modify the Cloudera Product(s) or the Work Product, as applicable, to make it non-

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

infringing. If Cloudera deems the aforementioned remedies not to be commercially reasonable then Cloudera may terminate this Agreement. Upon a termination of this Agreement pursuant to this Section 7.1, Customer must return the Cloudera Products and, within 30 days of Cloudera’s receipt of all of the Cloudera Products, Cloudera will refund the amounts Customer paid to Cloudera for the Cloudera Products and the Support Services for the then-current Subscription Period adjusted pro rata for any months in the then-current Subscription Period when any of the Cloudera Products and/or the Support Services were provided to Customer. Further, in such an event, Customer can [***]. Where the Claim is due to infringing Work Product, Customer must return the Work Product and Cloudera will refund the fees paid for such infringing Work Product. Cloudera’s indemnification obligations do not extend to Claims arising from or relating to: (w) any use of the Cloudera Product(s) or the Work Product, as applicable, in combination with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination, and where such combination was not otherwise recommended or authorized by Cloudera, or reasonably necessary for use of the Cloudera Products or the Work Product, as applicable; (x) any modification not recommended or approved by Cloudera to the Cloudera Product(s) or the Work Product, as applicable, by any party other than Cloudera where the infringement would not have occurred but for such modification; (y) the use of the Cloudera Product(s) or the Work Product, as applicable, by Customer in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (z) the continued use of the Cloudera Product(s) or the Work Product, as applicable, after Cloudera has provided substantially equivalent non-infringing software and Customer has been given a commercially reasonable amount of time to implement the replacement software. For avoidance of doubt, the obligations of Cloudera in this Section 7.1 do not apply to any Claims against External Dev/Test Users.

NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, THE PROVISIONS OF THIS SECTION 7.1 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CLOUDERA AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED MISAPPROPRIATION, VIOLATION AND/OR INFRINGEMENT OF ANY PROPRIETARY AND/OR INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7.1, CLOUDERA EXPRESSLY DISCLAIMS ANY OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AND/OR ANY OTHER PARTY (INCLUDING EXTERNAL DEV/TEST USERS) FROM ANY CLAIM, DEMAND, ACTION OR THREATENED ACTION.

8.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY (INCLUDING EXTERNAL DEV/TEST USERS) FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL,

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

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 EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CLOUDERA UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM OR [***], WHICHEVER IS GREATER. THE LIMITATIONS IN THE FOREGOING SENTENCE DO NOT APPLY TO CLAIMS FOR NON-PAYMENT OF FEES OWED BY CUSTOMER UNDER THIS AGREEMENT, BUT SUCH LIMITATIONS DO APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS DEFINED UNDER SECTION 2.1.

8.2 THE LIMITATIONS OF LIABILITY IN SECTION 8.1 WILL NOT APPLY WITH RESPECT TO (I) ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (II) BREACHES OF SECTIONS 2.1 (GRANTS), 2.2 (RESTRICTIONS), OR 5.1 (CONFIDENTIALITY) (III) PERSONAL INJURY (INCLUDING BODILY INJURY), DEATH, AND/OR PHYSICAL DAMAGE TO PROPERTY OR (IV) CLOUDERA’S INDEMNIFICATION OBLIGATIONS; PROVIDED, HOWEVER, THAT, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, CLOUDERA’S LIABILITY WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS FOR THE THIRD PARTY OPEN SOURCE SOFTWARE WILL NOT EXCEED TWO TIMES THE FEES PAID IN TWENTY FOUR (24) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. SECTION 8 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9.1 Term and Termination . Unless terminated as provided in this Agreement, the term of this Agreement will commence on the Effective Date and continue to the Expiration Date. Thereafter, this Agreement may be renewed and the term extended for one or more additional Subscription Periods upon the mutual agreement of an amendment by the parties. Cloudera agrees to use commercially reasonable efforts to notify Customer no fewer than ninety (90) days prior to the expiration of the initial forty-eight (48) month term. Either party may terminate this Agreement for cause provided that a breach remains uncured after the parties have exhausted the Dispute Resolution provisions set forth in Sub-Section 10.15 or 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. Further, Intel may terminate this Agreement if the Series F-1 Preferred Stock Purchase Agreement (the “SPA”)) has been terminated pursuant to Section 7.14 of the SPA prior to Closing (as that term is defined in the SPA).

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

9.2 Effect of Termination . Upon any expiration or termination of this Agreement:
(i) all rights and licenses granted to Customer under this Agreement will immediately terminate; and (ii) 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, at the other party’s sole discretion and direction, 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 applicable laws, which requirements may not include any dissemination to third parties without the prior consent of the Disclosing Party, and provided that such retained Confidential Information remains subject to the requirements of Section 5 and are used for no other purpose. Each of Customer and Cloudera will immediately confirm in writing that it has complied with Section 9.2(ii) if requested by the other party. In the event that the Agreement is terminated for breach by Customer, Cloudera will refund the remainder of any unused portion of any prepaid Subscription Fees. The following Sections will survive any expiration or termination of this Agreement: 1, 2.2, 2.3, 4, 5, 6.2, 7 (solely to the extent that a Claim is raised based on use during an active Subscription Period), 8, 9.2 and 10.

10.1 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, including any Customer Purchase Order, with respect to such subject matter and all past dealing or industry custom. In the event of a conflict between the terms and conditions of the Subscription Agreement, any Professional Services Agreement (if any) and any Training Agreement (if any): (i) the terms and conditions of the Subscription Agreement will govern the terms and conditions of the Professional Services Agreement and the terms and conditions of the Training Agreement; and (ii) the terms and conditions of the Professional Services Agreement Licensing Terms will govern the terms and conditions of the Training Agreement.

10.2 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. Cloudera and its employees will be solely responsible for determining the means and methods for performing the required Services. All subcontractors directed by Cloudera under this Agreement are considered Cloudera’s employees for purposes of this Agreement. Cloudera will make all deductions for taxes, worker’s compensation, and other deductions from employee wages as required by state and federal tax code or

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

other governmental tax laws. Cloudera will have complete charge and responsibility for personnel employed by Cloudera; however, Customer reserves the right to instruct Cloudera to remove from Customer's premises immediately any of Cloudera's personnel for any reason and at any time and without prior notice to Cloudera. Such removal will not relieve Cloudera of its obligation to provide Services under this Agreement or obligation to indemnify Customer under the Indemnification Sections of this Agreement. Customer acknowledges that a removal of personnel may result in a delay of Services delivery for which Cloudera is not responsible. Cloudera will indemnify Customer from all claims and hold Customer harmless from any and all liability, costs, fines and expenses, including attorneys’ fees, for any personal injury or damage to tangible property arising directly or indirectly from any negligence or misconduct of Cloudera’s employees and subcontractors.

10.3 Audits and Reporting . Customer acknowledges that the Cloudera Software contains a diagnostic functionality as its default configuration. The diagnostic function collects configuration files, node count, software versions, log files and other information regarding Customer’s environment, and reports that information to Cloudera in order for Cloudera to more quickly understand customer’s environment when working support cases. Customer may, in its sole discretion, elect to change the diagnostic function in order to disable regular automatic reporting or to report only on filing of a support ticket, provided that at any annual renewal Customer agrees to certify in writing the number of Nodes in the supported cluster.

10.4 Assignment . Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Such consent to assign will not be unreasonably withheld. In addition, Cloudera may assign this Agreement to any entity that acquires all or substantially all of its assets or voting stock, with which it merges, or into which it is consolidated, upon notice to Customer. For a period of ninety (90) days following Customer’s receipt of notice of an assignment after a change of control, Customer will have the right to terminate the Agreement without further liability in the event that such assignment is to a direct competitor of Customer, an entity that could reasonably be considered to negatively impact Customer if the contract were to be assigned, as solely determined by Customer, or Customer may terminate this Agreement provided that [***]. 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.

10.5 Third Party Open Source Software . Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that: (i) the Cloudera Products contain Third Party Open Source Software; and (ii) Customer agrees to comply with the third party open source licenses applicable to the Third Party Open Source Software. Further, Customer hereby acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to such Third Party Open Source

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933.

Software or any portion thereof, and assume no liability for any claim that may arise with respect to such Third Party Open Source Software or Customer’s use or inability to use the same.

10.6 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. 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.

10.7 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 confirmed email, confirmed facsimile, 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 this Agreement or at such other address as may hereafter 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.

10.8 Force Majeure . 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, 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. In the event such delay on the part of Cloudera continues for a period of longer than thirty (30) days, Customer will be entitled to terminate the Agreement and receive pro rata refund of any unexpended pre-paid Subscription Fees.

10.9 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.

10.10 Attorneys’ Fees . In any action to enforce this Agreement, each party will be responsible for their costs and attorneys’ fees.

10.11 Governing Law; Venue . This Agreement is made and will be governed by and construed in accordance with the laws of the State of Delaware, 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 the state or federal courts located in Wilmington, Delaware, and the parties irrevocably consent to the exclusive jurisdiction of the state and federal courts of the state of Delaware for any