1. License
1.1 License Terms.
(a) Proprietary Confluent Software. Subject to the terms of this Agreement, Confluent grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Term to install and use the software downloaded by Customer, in object code format only, along with the accompanying documentation, (“Proprietary Confluent Software”) only on servers owned or controlled by Customer and solely for internal use of Customer’s internal business operations.
(b) Evaluation Software. Without limiting subsection (a) above, the following terms apply to any portions of the Proprietary Confluent Software identified as “Evaluation Software” via an in-app notice. Confluent grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Evaluation Term to install the Evaluation Software only on servers owned or controlled by Customer and solely for internal evaluation of the suitability of the Evaluation Software for Customer’s business needs. “Evaluation Term” means thirty (30) days from the date of download by Customer or such other period specified in writing by Confluent. If Customer wishes to license the Evaluation Software after the Evaluation Term, or for purposes other than those set forth in this Section 1(b), Customer may contact Confluent to request a production license. Any such license will be subject to Confluent’s standard terms for such license.
(c) Open Source Software. In addition to the Proprietary Confluent Software, Confluent will provide Customer with the open source software made publicly available by Confluent and delivered with a text license file indicating an open source license or otherwise identified in writing as an open source license (“Open Source Software”). Open Source Software shall be subject to the open source license terms and conditions applicable to such software as specified by Confluent.
(d) Third Party Software. Confluent may make available to Customer certain third party software, currently identified at http://www.confluent.io/third_party_software (the “Third Party Software”). For clarity, notwithstanding anything to the contrary in this Agreement the Third Party Software is subject to the terms and conditions of the third party license agreement applicable to such software. To the extent the terms of open source licenses applicable to such Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to such Third Party Software require Confluent to make an offer to provide source code or related information in connection with the Third Party Software, such offer is hereby made. Any request for source code or related information should be directed only to: contact@confluent.io. Customer acknowledges receipt of open source license notices for such Third Party Software.
(e) Confluent Platform. The Proprietary Confluent Software (including without limitation the Evaluation Software), the Open Source Software and the Third Party Software shall be referred to collectively as the “Confluent Platform.”
1.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) use the Proprietary Confluent Software for third-party training, software-as-a-service, time-sharing or service bureau use or (b) disassemble, decompile or reverse engineer any portions of the Proprietary Confluent Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such Proprietary Confluent Software (or the underlying ideas, algorithms, structure or organization of the object code in the Proprietary Confluent Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer such Proprietary Confluent Software, Customer shall first provide Confluent with written notice thereof.
1.3 Copies. Section 1.1 includes the right for Customer to make copies of the Proprietary Confluent Software as necessary to exercise the licenses granted in Section 1.1, and a reasonable number of back-up or archival copies, provided that each such copy shall include Confluent’s copyright and any other proprietary notices that appear on the original copies of the Proprietary Confluent Software. Customer will have no right to make back-up copies of Evaluation Software.
1.4 Reservation of Rights. Confluent reserves all rights not expressly granted in this Section. No rights are granted by implication.
1.5 Data Usage. When Customer downloads the Confluent Platform, Customer acknowledges that Customer’s IP address and certain metadata will be sent automatically to Confluent, such as the software versions and whether the software is starting or stopping. More information can be found at www.confluent.io/privacy. Customer can opt out of this data collection by setting a single parameter to “false” in each broker configuration to stop collection, as set forth at http://docs.confluent.io/current/proactive-support/docs/index.html.
1.6 Delivery of Materials. The Confluent Platform, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. The parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means.
2. Ownership. Customer acknowledges that Confluent or its licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Confluent Platform and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”) made by or on behalf of Customer, and as between the parties all such rights shall vest in Confluent. Customer acknowledges that the licenses granted in Section 1.1 do not include the right to prepare any Modifications of the Confluent Platform. Except as explicitly set forth herein, Customer shall have no right to receive any such Modifications. In the event ownership of any portion of the Confluent Platform or any Modifications vest in Customer, Customer hereby assigns and shall assign to Confluent all of its right, title and interest in and to all intellectual property and other rights in such materials or Modifications, and waives any and all moral rights in such materials or Modifications to which it may now or in the future be entitled under the laws of any jurisdiction.
3. Confidentiality.
3.1 Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”); provided, however that Modifications will be the Confidential Information of Confluent and not Customer. Notwithstanding any failure to so designate them, the Proprietary Confluent Software and the terms and conditions of this Agreement shall be Confluent's Confidential Information. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
3.2 Remedies. Each party acknowledges that any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
4. Support and Disclaimer.
4.1 Support and Maintenance. Confluent offers maintenance and support for the Confluent Platform (the “Support Services”), and Customer may wish to purchase such services. Any agreement for Support Services between Customer and Confluent will be subject to Confluent’s then-current standard policies, prices and terms and conditions for Support Services.
4.2 Disclaimer of Any Warranties. CONFLUENT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROPRIETARY CONFLUENT SOFTWARE, ANY OTHER ELEMENT OF THE CONFLUENT PLATFORM OR ANY OTHER MATERIALS PROVIDED HEREUNDER. CONFLUENT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE CONFLUENT PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
5. Limitation of Liability. IN NO EVENT SHALL CONFLUENT’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $500. CONFLUENT WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF CONFLUENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. Term and Termination.
6.1 Term. Unless earlier terminated as provided in this Section, this Agreement and the license granted hereunder shall be effective as of the Effective Date and shall continue thereafter until terminated in accordance with this Section (the “Term”).
6.2 Termination. Either party shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than thirty (30) days after written notice of such default to the other party. Confluent may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
6.3 Effect of Termination. The rights and obligations of Confluent and Customer in Sections 1.4 (Reservation of Rights), 2 (Ownership), 3 (Confidentiality), 4.2 (Warranty Disclaimer), 5 (Limitation of Liability), and 7 (Miscellaneous) shall survive termination of this Agreement. All of Customer’s rights in the Evaluation Software will terminate immediately upon termination of this Agreement. No later than five (5) days after termination of this Agreement, Customer shall return to Confluent or, upon Confluent's request, destroy, at Customer’s sole expense, all Confidential Information of Confluent and materials containing any Confidential Information of Confluent, the Proprietary Confluent Software, including all copies thereof, and deliver to Confluent a certification, in writing signed by an officer of Customer, that such Confidential Information, Proprietary Confluent Software and all copies thereof have been returned or destroyed, and their use discontinued. Nothing contained herein shall limit any other remedies that Confluent may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.
7. Miscellaneous.
7.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Confluent’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Confluent shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
7.2 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Customer purchase order or other document, the terms and conditions of this Agreement shall prevail. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
7.3 Governing Law. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
7.4 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
7.5 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall 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. Each party may identify the other as a customer or supplier, as applicable.
7.6 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.
7.7 U.S. Government Restricted Rights. If Proprietary Confluent Software is being licensed by the U.S. Government, the Proprietary Confluent Software is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
7.8 Export Law Assurances. Customer understands that the Proprietary Confluent Software is subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PROPRIETARY CONFLUENT SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE PROPRIETARY CONFLUENT SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (a) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (b) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
7.9 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”
 
 This Software License was last modified on 17 May 2016