STREAMSETS, INC.SUBSCRIPTION TERMS OF SERVICEUpdated: January 8, 2019This StreamSets Subscription Terms of Service (“Agreement”) is entered into by and between StreamSets, Inc. (“StreamSets”) and the entity or person placing an order for or accessing any Product (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms”). If you are accessing or using the Product on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Product through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.Modifications to this Agreement: From time-to-time, StreamSets may modify this Agreement by giving notice to Customer by email or through the Product. If Customer notifies StreamSets by email at firstname.lastname@example.org within thirty (30) days of receipt of such notice that it objects to such modifications, StreamSets (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the prior version of this Agreement until expiration of Customer’s then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any fees Customer has pre-paid for use of the Products for the terminated portion of the applicable Subscription Term. Unless otherwise specified in StreamSets’ notice, the modifications become effective thirty (30) days after the date of such notice. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using a Product, and in any event (unless otherwise agreed by StreamSets above) continued use of the Product after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY PRODUCT, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY PRODUCTS. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. OVERVIEW OF STREAMSETS PRODUCTS. StreamSets Products are designed to enable Customer to configure, run, manage and monitor Data Pipelines between Customer’s selected Endpoints. Customer configures Data Pipelines using Data Tools and views and analyzes Customer Technical Data collected from Data Pipelines using Management Tools. Data Tools are deployed as Software, while Management Tools may be deployed as Software or used as a Service. StreamSets may receive Customer Technical Data or Usage Data through operation of the Products but does not receive any of Customer’s Pipeline Data.DEFINITIONS “Access Mechanisms” means user IDs, passwords, accounts, license keys or other Product access mechanisms provided by StreamSets. “Customer Technical Data” means technical data relating to Customer’s use of the Service (such as Endpoint identities, Data Pipeline configurations or number or size of records, error rate, throughput, memory utilization or other attributes of Customer’s Pipeline Data) or otherwise collected by the Service or submitted by or on behalf of Customer to the Service. Customer Technical Data excludes Pipeline Data or Usage Data. “Customer Systems” means computers, servers, hardware or other systems (whether real or virtual) controlled by, or operated for the benefit of, Customer. “Data Pipeline” has the meaning set forth in Section 4.1 (Configuration of Data Pipelines). “Data Tools” means Software which, among other features, configures and runs Data Pipelines and collects Customer Technical Data. As of the Effective Date, Data Tools include StreamSets Data Collector and SDC Edge. “Documentation” means the then-current version of technical user documentation provided with the applicable Product. “Endpoint” means the origin or destination point for Pipeline Data. “Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications and the exportation of technical or personal data. “Maintenance” has the meaning set forth in the Support Policy. “Management Tools” means Products other than Data Tools. As of the Effective Date, Management Tools include StreamSets Control Hub, Dataflow Performance Manager and Data Protector. “Pipeline Data” means the data streaming through a Data Pipeline. “Products” means the Software and Service. “Professional Services” has the meaning set forth in Section 13 (Professional Services). “Scope of Use” means any core, processor, node, Endpoint or other scope of use restrictions set forth in the applicable Order Form. “Service” means the specific StreamSets proprietary software-as-a-service solution(s) identified on the applicable Order Form. “Software” means the specific StreamSets proprietary software product(s), including any related software development kits, identified on the applicable Order Form. Software shall also include any Maintenance releases of the same Software product provided to Customer under this Agreement. “Support” has the meaning set forth in the Support Policy. “Usage Data” means technical, log, usage and other data related to Customer’s general use of a Product, such as the Product version and the number and running duration of active Data pipelines (but excluding Customer Technical Data or Pipeline Data).STREAMSETS PRODUCTSProvision of Products. Each Product is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). StreamSets may also offer Professional Services related to certain Products. Customer shall purchase and StreamSets shall provide the specific Products and related Professional Services (if any) as specified in the applicable Order Form.Deployment Model. StreamSets offers certain Products as Software and certain Products as a Service. In the event the same Product is offered as both Software and a Service (otherwise referred to as “Hybrid”), Customer may use either version provided that Customer: (a) notifies StreamSets Support personnel in advance of any switch between versions (including to receive any additional necessary Access Mechanisms), (b) acknowledges that StreamSets will not be responsible for any delays or interruptions in use associated with switching between versions and (c) does not exceed the Scope of Use. As of the Effective Date, Data Tools are offered only as Software and Management Tools are offered as either Software or as a Service.Access to the Service. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, Customer may access and use the Service solely for its own benefit, but only in accordance with (a) this Agreement, (b) the Documentation and (c) the Scope of Use. Use of and access to the Service is permitted only by employees of Customer (“Permitted Users”). If Customer is given Access Mechanisms, Customer shall require that all Permitted Users keep such Access Mechanisms strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s Access Mechanisms and for disabling access to the Service by any Permitted User who is no longer an employee of Customer.License to Software. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, StreamSets grants to Customer a non-transferable, non-sublicensable, non-exclusive license to install and use the object code form of the Software on Customer Systems solely for its own benefit, but only in accordance with (a) this Agreement, (b) the Documentation and (c) the Scope of Use. The Software may only be used by Permitted Users. For clarity, while StreamSets may separately make available software under open source license agreements (“StreamSets Open Source”), any Software provided under this Agreement is governed solely by the terms of this Agreement and not the terms of any open source license for StreamSets Open Source.Installation and Copies. Customer may install Software on any Customer System for use and access by Permitted Users. Subject to any Scope of Use, Customer may make a reasonable number of copies of the Software, including for its back-up and archival purposes.Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of StreamSets (“Contractors”) and Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of any Product by such Contractor or Affiliate is for the sole benefit of Customer. Use of any Product by the Affiliates, Contractors and Customer in the aggregate must be within the Scope of Use. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.General Restrictions. Customer shall not (and shall not permit any third party to): (a) provide access (including as a service) to any Product to a third party; (b) use any Product to provide or develop, or incorporate any Product into, any other product or service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code, underlying ideas, algorithms, file formats or non-public APIs to any Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to StreamSets); (d) copy or modify any Product or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in any Product (including any reports or data printed from any Product); or (f) publicly disseminate information regarding the performance of any Product.Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Product (a “Trial Subscription”), then Customer may use the Product in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by StreamSets (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s internal testing and evaluation purposes. Certain Trial Subscriptions may include pre-release and beta products (“Beta Releases”). Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term, and Beta Releases may be inoperable, incomplete, or contain more errors and bugs than a generally available Product. StreamSets makes no promises that any Beta Releases will ever be made generally available. All information regarding the characteristics, features or performance of Beta Releases constitutes StreamSets’ Confidential Information. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Product will terminate at the end of the Trial Period. StreamSets has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, STREAMSETS WILL HAVE NO WARRANTY, INDEMNITY, DATA ARCHIVING, OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.Delivery of Software and Documentation. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form.DATA PIPELINESConfiguration of Data Pipelines. Data Tools enable Customer to configure and run processes that transport Pipeline Data between Endpoints (a “Data Pipeline”). Endpoints may be (a) internal to Customer or (b) services or data sources provided by third parties. Customer must have its own valid accounts for third-party Endpoints and is solely responsible for complying with any terms of service, privacy policies or other agreements governing third-party Endpoints (“Third-Party Endpoint Terms”). StreamSets is not responsible or liable for any Endpoints. The Endpoints supported by the Products are specified in the Documentation, however Customer acknowledges and agrees that StreamSets’ ability to maintain integrations with such Endpoints is dependent on the providers of such Endpoints enabling such integrations.No StreamSets Access to Pipeline Data. Customer acknowledges that Data Tools are deployed only within Customer Systems and that no Pipeline Data is transmitted, stored or processed by the Service or StreamSets. StreamSets has no responsibility or liability for Pipeline Data, including for security. For clarity, whether a Management Tool is deployed as Software or used as a Service, all Pipeline Data remains in Customer Systems and is not transmitted to StreamSets.DATARights in Customer Technical Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Technical Data. Subject to the terms of this Agreement, Customer hereby grants to StreamSets a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Technical Data solely to the extent necessary to provide the Service to Customer.Archives and Backups of Customer Technical Data. StreamSets does not provide an archiving service. StreamSets agrees only that it shall not intentionally delete any Customer Technical Data from the Service prior to termination of Customer’s applicable Subscription Term. Customer is responsible for creating its own backups of Customer Technical Data. StreamSets expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Technical Data.Customer Responsibilities. Customer is solely responsible for the accuracy, content and legality of all Customer Technical Data and agrees to comply with all Laws in its use of the Products. Customer represents and warrants to StreamSets that Customer has all necessary rights, consent and permissions to collect, share and use Customer Technical Data as contemplated in this Agreement (including granting StreamSets the rights in Section 5.1 (Rights in Customer Technical Data) above), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws or (iii) any Third-Party Endpoint Terms.Usage Data. StreamSets collects Usage Data from the Products. Notwithstanding anything to the contrary in this Agreement, Customer agrees that StreamSets may collect and use Usage Data to improve, operate and support any Product and for any other business purpose during and after the term of this Agreement. StreamSets will not disclose Usage Data externally unless it has been (i) de-identified so that it does not individually identify Customer, its Permitted Users or any other person or entity and (ii) aggregated with similar data across other StreamSets customers.SECURITY. StreamSets agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Technical Data. However, StreamSets shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond StreamSets’ control.OWNERSHIP.StreamSets Technology. This is a subscription agreement for access to and use of the Products. Customer acknowledges that it is obtaining only a limited right to use the Products and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that StreamSets and its suppliers have and will retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Products, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation; and any and all copies, modifications, improvements and derivative works thereof, including as may incorporate Feedback (collectively, “StreamSets Technology”). Except as expressly set forth in this Agreement, no rights in any StreamSets Technology are granted to Customer.Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any StreamSets product or service to StreamSets (“Feedback”). StreamSets may freely use or exploit Feedback in connection with any of its products or services.SUBSCRIPTION TERM, FEES & PAYMENT Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.Fees and Payment. All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 10 (Limited Warranty), Section 11 (Availability) and Section 15 (Indemnification), all fees are non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of StreamSets. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.Suspension of Service. Without limiting StreamSets’ termination or other rights hereunder, StreamSets reserves the right with notice (email sufficient) to suspend Customer’s access to the Service (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 3.6 (General Restrictions) or 5.3 (Customer Responsibilities); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Service. Unless this Agreement has been terminated, StreamSets will restore Customer’s access to the Service promptly after StreamSets verifies that Customer has resolved the issue requiring suspension.TERM AND TERMINATIONTerm. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).Effect of Termination. Upon any expiration or termination of this Agreement, (a) Customer’s right to use the Products (including its license to any Software) terminates, (b) Customer shall immediately cease any and all use of and access to the Products and (c) Customer shall delete (or, at StreamSets’ request, return) any and all copies of the Software, Documentation, any StreamSets passwords or access codes and any other StreamSets Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Technical Data input into the Service, and that StreamSets may delete any such data as may have been stored by StreamSets at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.Survival. The following Sections shall survive any expiration or termination of this Agreement: 2 (Definitions), 6 (General Restrictions), 5.2 (Archives and Backups of Customer Technical Data), 5.4 (Usage Data), 7 (Ownership), 8.2 (Fees and Payment), 9 (Term and Termination), 10.2 (Warranty Disclaimer), 14 (Limitation of Remedies and Damages), 15 (Indemnification), 16 (Confidential Information) and 18 (General Terms).LIMITED WARRANTYLimited Warranty. StreamSets warrants, for Customer’s benefit only, that each Product will operate in substantial conformity with the applicable Documentation. StreamSets does not warrant that Customer’s use of the Products will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. StreamSets’ sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for StreamSets to use commercially reasonable efforts to correct the reported non-conformity, or if StreamSets determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Product for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 1, ALL Products AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER STREAMSETS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. StreamSets does not warrant Customer TECHNICAL DATA will be accurate or pREserved without loss. StreamSets SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF StreamSets. Features of the Products designed to detect and filter categories of PIPELINE data (such as name and address) have inherent limitations. StreamSets does not guarantee that the Products will detect or filter all PIPELINE data with complete accuracy. Customer is solely liable for its own data handling policies. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.AVAILABILITY. The Service is subject to the Service Level Agreement, found at StreamSets.com/sla.SUPPORT. During the Subscription Term of each Product, StreamSets shall provide end user support in accordance with the terms set forth on the Support Policy, found at Streamsets.com/support.PROFESSIONAL SERVICES. StreamSets shall provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer shall pay StreamSets at the per-hour rates set forth in the Order Form (or, if not specified, at StreamSets’ then-standard rates) for any services. Customer will reimburse StreamSets for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Products and subject to the terms regarding Customer’s rights to use the Product set forth in Section 3 (StreamSets Products) and the applicable SOW, but StreamSets shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by StreamSets (or its agents).LIMITATION OF REMEDIES AND DAMAGES.Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CUSTOMER TO STREAMSETS DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 6 (General Restrictions) or Section 5.3 (Customer Responsibilities), (b) from a party’s breach of its obligations in Section 16 (Confidential Information) (but excluding claims relating to Customer Technical Data) or (c) from StreamSets’ indemnification obligations in Section 15 (Indemnification).Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.INDEMNIFICATION. StreamSets shall defend Customer from and against any claim by a third party alleging that a Product when used as authorized under this Agreement infringes a patent, U.S. copyright, or U.S. trademark and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by StreamSets (including reasonable attorneys’ fees) resulting from such claim, provided that StreamSets shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for StreamSets to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation of Customer. Customer may participate in the defense of any claim with counsel at its expense. StreamSets may not settle a claim without Customer’s prior written consent if the settlement requires Customer to admit any liability or take or refrain from taking any action (other than with respect to use or non-use of the Products). If Customer’s use of a Product is (or in StreamSets’ opinion is likely to be) enjoined, if required by settlement or if StreamSets determines such actions are reasonably necessary to avoid material liability, StreamSets may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Product; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement and refund to Customer the fees Customer has pre-paid for use of such Product for the terminated portion of the applicable Subscription Term. The foregoing indemnification obligation of StreamSets shall not apply: (1) if such Product is modified by any party other than StreamSets, but solely to the extent the alleged infringement is caused by such modification; (2) if such Product is combined with products or processes not specified in the Documentation or provided by StreamSets, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Product; (4) to any action arising as a result of Customer Technical Data or any third-party deliverables or components contained within such Product; or (5) if Customer settles or makes any admissions with respect to a claim without StreamSets’ prior written consent. THIS SECTION 15 SETS FORTH StreamSets’ AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any StreamSets Technology, performance information relating to any Product, and the terms and conditions of this Agreement shall be deemed Confidential Information of StreamSets without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for StreamSets, the subcontractors referenced in Section 10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 16. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.CO-MARKETING. At the request of StreamSets, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Products to other potential customers and to use of Customer’s name and logo on StreamSets’ web site and in StreamSets promotional materials. Customer agrees that StreamSets may disclose Customer as a customer of StreamSets.GENERAL TERMSAssignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 1 will be null and void.Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience StreamSets may make changes to the Service, and StreamSets will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the Service Level Agreement, respectively, may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease StreamSets’ obligations as compared to those reflected in such terms as of the Effective Date).Software Audit Rights. Upon StreamSets’ written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including the Scope of Use). If Customer fails to so certify upon request, with prior reasonable notice of at least thirty (30) days, StreamSets may audit the copies of the Software in use by Customer provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed Scope of Use.Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.Subcontractors. StreamSets may use the services of subcontractors and permit them to exercise the rights granted to StreamSets in order to provide the Products and Professional Services under this Agreement, provided that StreamSets remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Products as required under this Agreement.Subpoenas. Nothing in this Agreement prevents StreamSets from disclosing Customer Technical Data to the extent required by law, subpoenas or court orders, but StreamSets will use commercially reasonable efforts to notify Customer where permitted to do so.Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.Export Compliance. Customer acknowledges that the Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third party to remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Customer shall not submit to the Products any information that is controlled under the U.S. International Traffic in Arms Regulations. The Products are further restricted from being used for the design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.S. Government Rights and Restrictions. The Products and Documentation are “commercial items” as that term is defined by FAR 2.101. If Customer is a U.S. Federal Government (“Government”) Executive Agency (as defined in FAR 2.101), StreamSets provides the Products and Documentation, including any related technical data, and Professional Services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (“DoD”), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and the software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), only those rights in technical data and the software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies, except under GSA schedule contracts. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and the software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section 18.14, it must negotiate with StreamSets to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum (between StreamSets and Customer) specifically conveying such rights must be included in any applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for Customer’s use, Customer agrees to terminate Customer’s use of the Products and Documentation and return the Products and Documentation and any other software or technical data delivered as part of the Products and Documentation, unused, to StreamSets. This U.S. Government Rights clause in this Section 18.14 is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in the Products, and computer software or technical data.Open Source. The Software may contain or be provided with third-party components subject to the terms and conditions of “open source” software licenses (“Third-Party Open Source”). Third-Party Open Source may be identified in the Documentation, or StreamSets shall provide a list of the Third-Party Open Source to Customer upon Customer’s written request. To the extent required by the license that accompanies the Third-Party Open Source, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Third-Party Open Source, including, without limitation, any provisions governing access to source code, modification or reverse engineering. For clarity, Third-Party Open Source does not include any StreamSets Open Source.Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.