PLEASE READ THIS HORTONWORKS SMARTSENSE AGREEMENT BEFORE USING HORTONWORKS SMARTSENSE. BY CLICKING “AGREE AND DOWNLOAD” CUSTOMER IS INDICATING ACCEPTANCE OF THIS AGREEEMENT AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH WILL GOVERN CUSTOMER’S USE OF HORTONWORKS SMARTSENSE. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, CLICK THE "CANCEL" BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE HORTONWORKS SMARTSENSE. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, THE INDIVIDUAL OR LEGAL ENTITY (“CUSTOMER”) AGREES TO BE BOUND BY THE TERMS OF THIS HORTONWORKS SMARTSENSE AGREEMENT (“AGREEMENT”).
This Agreement is made by and between the Customer and (a) if Customer is located in the United States, Canada or Mexico (together “North America”), Hortonworks, Inc., or (b) if Customer is located outside of North America, Hortonworks B.V. (each of Hortonworks, Inc. or Hortonworks B.V. referred to herein as “Hortonworks”). This Agreement is effective as of the date Customer accepts the terms of this Agreement (the “Effective Date”).
WHEREAS, Customer is currently receiving Support services for the Hortonworks Data Platform from Hortonworks and it now desires to use Hortonworks SmartSense tool.
NOW THEREFORE, the parties hereby agree as follows:
1.0 LICENSE GRANT.
Hortonworks grants to Customer free of charge a non-exclusive, non-transferable limited license, without a right to sublicense, to access and use Hortonworks SmartSense in accordance with the terms and conditions of this Agreement. Customer shall not allow any third parties or persons other than its employees or authorized contractors to use or have access to Hortonworks SmartSense. “Hortonworks SmartSense” or “SmartSense” consists of (i) software to be installed by Customer within its data infrastructure environment and (ii) access to on-line services that, together, allow customers to (a) quickly capture relevant cluster metric data to assist with faster case resolution and (b) perform on-going data collection to support proactive recommendations on performance, configuration, security and operations.
2.1 Customer shall access and use SmartSense only as specifically authorized by Hortonworks herein and shall not use, link or interface SmartSense with any equipment, software, data, network or communications system, in any manner or in connection with any function, not specifically authorized by Hortonworks.
2.2 Customer may not: (i) use SmartSense to provide services to third parties; (ii) obtain, or assist others in obtaining, access to SmartSense, other than as required for the permitted use hereunder; (iii) transfer, modify, reverse engineer, disassemble, decompile, incorporate or use in any other works, or create derivative works of SmartSense, (iv) reproduce, republish or offer any part of SmartSense (or compilations based on any part of SmartSense) for sale or distribution in any form, over or through any medium whether in hard copy, electronically or otherwise, including, without limitation, wireless communications, via cable or broadband services, hyperlink, framing or in any other manner on the Internet, any public or private bulletin board system or other electronic network without the prior written consent of Hortonworks or (v) use, transfer, distribute, or dispose of any Hortonworks information contained in or provided through SmartSense in any manner that could compete with the business of Hortonworks.
2.3 Customer shall be responsible for any unauthorized access to or use of SmartSense and the Hortonworks Confidential Information (as defined below) provided to Customer hereunder. Customer shall: (i) notify Hortonworks promptly of any material unauthorized access, possession, use, loss, knowledge, or attempt thereof, of SmartSense and/or the Hortonworks Confidential Information by any person or entity which may become known to Customer; (ii) promptly furnish to Hortonworks full details of the unauthorized access, possession, use, loss, knowledge, or attempt thereof, and use reasonable efforts to assist Hortonworks in investigating or preventing the recurrence of any unauthorized access, possession, use, loss, knowledge, or attempt thereof, of SmartSense and/or the Hortonworks Confidential Information; (iii) use reasonable efforts to cooperate with Hortonworks in any litigation and investigation against such third parties deemed necessary by Hortonworks to protect its proprietary rights; and (iv) promptly use all reasonable efforts to prevent a recurrence of any such unauthorized access, possession, use, loss, knowledge, or attempt thereof of SmartSense and/or the Hortonworks Confidential Information. Any and all information related to SmartSense or performance thereof, as well as any technical, or other information provided by Hortonworks to Customer (including, without limitation, the terms of this Agreement) (“Confidential Information”) shall be held in confidence and not disclosed or, except as provided in the next sentence, used by Customer except as permitted in writing. This obligation will not apply to information that is generally and freely publicly available through no fault of Customer, that Customer independently developed without use of or reference to Hortonworks’ Confidential Information, or that Customer otherwise rightfully obtains from third parties without restriction on disclosure.
3.0 TERM AND TERMINATION. The term of this Agreement will commence on the Effective Date and will continue until terminated as set forth herein. Hortonworks may, in its sole discretion, terminate this Agreement at any time upon written notice to Customer. Upon expiration or termination of this Agreement, Customer will return to Hortonworks all copies of SmartSense (including backup copies) in any and all media, and delete any such copies that are resident in the memory or hard disks of computers owned or controlled by Customer.
4.0 HORTONWORKS SMARTSENSE AND OWNERSHIP
SmartSense is not sold, but rather is licensed for Customer’s internal use and only in accordance with the use restrictions set forth in this Agreement and strictly in accordance with any applicable documentation. Hortonworks and its licensors own all right, title and interest in and to SmartSense (including any updates thereto) and reserve all rights to SmartSense that are not expressly granted hereunder by Hortonworks. Except for the license granted herein, Customer shall not obtain, and Hortonworks grants no, ownership right, title or interest in SmartSense, the content provided by Hortonworks therein, or the technologies used to create SmartSense, in all languages, formats and media throughout the world, including all present and future rights in and to the information, content data, designs, material and all trade secrets, patents, copyrights, trademarks, service marks, know-how and other proprietary rights of any type inherent therein or appurtenant thereto.
5.1 Customer may, in its sole discretion, provide Hortonworks with suggestions, enhancement requests, recommendations, or other feedback related to SmartSense (“Feedback”).
5.2 Customer agrees that Hortonworks shall own all Feedback and have the right to use Feedback in any manner and for any purpose in its sole discretion. Customer hereby assigns to Hortonworks all right, title, and interest in and to Feedback, including all intellectual property rights therein and thereto. Customer agrees to execute such further instruments as Hortonworks may reasonably request confirming Hortonworks’ ownership of Feedback as agreed herein.
5.3 Customer consents to Hortonworks’ use of Customer data collected from SmartSense to provide services contemplated herein.
6.0 WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
6.1 CUSTOMER ACKNOWLEDGES AND AGREES THAT HORTONWORKS SMARTSENSE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. NEITHER HORTONWORKS NOR ITS SUPPLIERS MAKES (AND HAS NOT AUTHORIZED ANYONE TO MAKE) ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
6.2 NEITHER HORTONWORKS NOR ITS SUPPLIERS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS OF ONE HUNDRED DOLLARS ($100), (II) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (IV) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. HORTONWORKS SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL.
7.1 Governing Law and Venue. This Agreement is governed by the laws of the State of California, without regard to conflict of law principles. The parties specifically agree that this Agreement will not be governed by the Uniform Commercial Code. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Hortonworks SmartSense is a “Commercial Item” as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in Santa Clara County, California, and the parties expressly consent to personal jurisdiction and venue therein. Neither this arrangement nor the licenses granted hereunder are assignable or transferable by Customer (and any attempt to do so shall be void). Hortonworks may freely assign, delegate, license and/or transfer this Agreement, in whole or in part, without consent.
7.2 Independent Contractors. The relationship between the parties established under this Agreement is that of independent contractors, and nothing in this Agreement shall be construed to create an employment, partnership, joint venture, or agency relationship between the parties.
7.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to achieve the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
7.4 No Waiver. The failure of a party to enforce any provision or exercise any right under this Agreement shall not constitute a waiver of such provision or right and shall not preclude such party from enforcing such provision or exercising such right at any later time.
7.5 Compliance with Laws. Customer acknowledges that items provided hereunder are of United States origin, are provided subject to the U.S. Export Administration Regulations, and may be subject to other applicable national and international laws. Diversion or distribution contrary to applicable export control laws is prohibited. Customer represents that (1) it is not, and is not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Denied Entity List; and (2) it will not permit items delivered under this Agreement to be used for any purposes prohibited by law, including, but not limited to, any prohibited development, design, manufacture, or production of missiles or nuclear, chemical, or biological weapons. Additionally, each of the parties agrees that it will not engage in any illegal, unfair, deceptive, or unethical business practices whatsoever, including, but not limited to, any act that would constitute a violation of the U.S. Foreign Corrupt Practices Act.
7.6 The following provisions shall survive termination or expiration of this Agreement: Sections 2, 3, 4, 6 and 7.