Confluent Terms of Service

If you have ordered Confluent Cloud, including any related services provided by Confluent over the internet, the following terms apply:

1. Your Agreement with Confluent

1.1 Your use of the Confluent Service is governed by these Terms of Service (the “Agreement”) The “Confluent Service” means the products that Confluent makes available through its website as a hosted, web-based service, including any related services provided by Confluent over the internet. “Confluent” means Confluent, Inc., located at 101 University Avenue, Suite 111, Palo Alto, CA 94301.

1.2 Your use of the Confluent Service is subject to the terms of this Agreement. By accessing or using the Confluent Service, or by clicking on the checkbox that demonstrates acceptance of this Agreement, you are agreeing to the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, then you represent and agree that you have the legal authority to bind that entity to this Agreement. If you do not accept the terms of this Agreement, then you cannot use the Confluent Service.

1.3 Certain defined terms are set forth in Section 12 of this Agreement.

2. Use of the Confluent Service

2.1 Scope of Service. During the Subscription Term, Confluent will make the Confluent Service available to You pursuant to this Agreement. You may access and use the Confluent Service solely for your own business operations.

2.2 Registration and Security. You must provide accurate registration information when you register to use the Confluent Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Confluent immediately at support@confluent.io.

2.3 Restrictions. You shall not, and shall not permit or cause others to: (a) modify, alter, or create derivative works based on the Confluent Service, (b) use the Confluent Service for third-party training, time-sharing or service bureau use, or (c) disassemble, decompile or reverse engineer any portions of the Confluent Service or any software used to provide the Confluent Service.

2.4 Acceptable Use. You shall not use, or encourage, promote, facilitate or instruct others to use, the Confluent Service for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing, offensive, or in violation of privacy rights. You shall not use the Confluent Service to violate the security or integrity of any network, computer or communications system, software application, or network or computing device. You shall not make network connections to any users, hosts, or networks unless you have permission to communicate with them, and you may not use manual or electronic means to avoid any use limitations placed on the Confluent Service, such as access and storage restrictions. Confluent reserves the right, but has no obligation, to (i) investigate any violation of this provision or misuse of the Confluent Service, and (ii) remove or modify any content, or disable access to any resource, that violates this provision.

3.Your Data

3.1 License From You. Subject to the terms of this Agreement, you hereby grant to Confluent a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display Your Data solely to the extent necessary to provide the Confluent Service to you. You represent and warrant (i) that you have all necessary rights and consents to provide Your Data to Confluent for such purpose, and (ii) that you will not process protected health information or EU-regulated personal data using the Confluent Service.

3.2 Security. Confluent will use commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Your Data. Confluent does not screen Your Data.

3.3 Privacy. Confluent’s Privacy Policy describes how Confluent collects, uses, shares and protects Your Personal Information, and is hereby incorporated by this reference into this Agreement. You agree to the use of Your Personal Information in accordance with Confluent’s Privacy Policy.

4.Fees and Payment

4.1 Fees and Payment. Your use of the Confluent Service will be subject to the fee schedule applicable to your subscription, as specified in your order. Fees will be calculated and billed based on the subscription you select and your use of the Confluent Service.

4.2 Taxes. You shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Confluent’s net income. If you are compelled to make a deduction or set-off for any such taxes, you will pay to Confluent such additional amounts as are necessary to ensure receipt by Confluent of the full amount Confluent would have received but for the deduction.

4.3 Credit Card Processing. For subscriptions ordered through the Confluent Service interface, Confluent uses a third party credit card processing service (currently Stripe, Inc., https://stripe.com/) to process payments. You consent to the use of such service and to the transfer of your credit card details (including any of Your Personal Information contained therein) to such third party processor, and you agree to be bound by any separate terms applicable to the processing service. Fees will be charged automatically to your credit card using the processing service.

4.4 Late Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Confluent reserves the right to suspend your access to the Confluent Service upon notice to you for any failure to pay any amount due and payable under this Agreement.

5. Ownership and Reservation of Rights

5.1 Confluent Service. You acknowledge and agree that Confluent or its licensors retain all rights, title and interest, including all intellectual property rights, in and to the Confluent Service. Except for the limited right to access and use the Confluent Service granted to you under this Agreement, you shall not have any rights, license or interests in and to the Confluent Service or to any other materials that you may access through or with the Confluent Service. If you provide Confluent any suggestions, enhancement requests, recommendations, or other feedback regarding Confluent’s products and services (“Feedback”), Confluent may freely use and incorporate into Confluent’s products and services any such Feedback.

5.2 Your Data. As between you and Confluent, you retain all rights, title and interest, including all intellectual property rights, in Your Data.

6. Confidentiality

6.1 Confidentiality Obligations. 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”). Notwithstanding any failure to so designate it, Confluent’s proprietary software 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 without confidentiality restrictions and 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 and such party will ensure their compliance therewith) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

6.2. Injunctive Relief. 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.

7. Warranties and Disclaimers

7.1 Authority. Each party represents and warrants that it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder.

7.2 Warranty Disclaimer. CONFLUENT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONFLUENT SERVICE OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER. CONFLUENT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, TITLE 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. CONFLUENT DOES NOT WARRANT THAT THE CONFLUENT SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CONFLUENT SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

8. Indemnification

8.1 Your Indemnification of Confluent. You will defend Confluent from and against any third-party claim, demand, or lawsuit arising out of or relating to (a) your or any of your users’ violation of the Acceptable Use Policy, (b) your violation of applicable laws, rules or regulations in connection with the Confluent Service, or (c) Your Data or the combination of Your Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Data, and you will pay such damages or costs as are finally awarded against Confluent attributable to any such action, provided that Confluent: (a) notifies you promptly in writing of any such action; (b) gives you sole control of the defense or settlement of such action; and (c) gives you all reasonable information and assistance, at your expense.

9. Limitation of Liability

9.1 Limitation of Liability. EXCEPT FOR your BREACH OF SECTION 2.3 or 2.4, either party’s BREACH OF SECTION 6, or INDEMNIFICATION OBLIGATIONS:

(A) NEITHER PARTY (NOR ITS SUPPLIERS) WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR (TO THE EXTENT THE FOLLOWING ARE NOT CATEGORIZED AS THE FOREGOING EXCLUDED DAMAGES) LOSS OF BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE OR OTHER TORT, OR INTELLECTUAL PROPERTY INFRINGEMENT) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

(B) IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES OR LIABILITY OF ANY TYPE EXCEED THE AMOUNT PAID OR PAYABLE BY YOU TO CONFLUENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

YOU AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Term and Termination

10.1 Term. Unless earlier terminated as provided in this Section, the term of this Agreement will commence on the start of your Subscription Term and will remain in effect until the termination or expiration of all Subscription Terms under this Agreement.

10.2 Termination. Either party shall have the right to terminate this Agreement 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 you: (a) terminate or suspend your business; (b) become subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) become insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) have wound up or liquidated, voluntarily or otherwise.

10.3 Effect of Termination. Upon expiration or termination of this Agreement, all rights granted under this Agreement shall terminate; provided, however, that the rights and obligations of you and Confluent in Sections 5 (Ownership and Reservation of Rights), 6 (Confidentiality), 7.2 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Effect of Termination) and 11 (Miscellaneous) shall survive termination of this Agreement. Upon termination of this Agreement, Confluent shall have no obligation to return to you any Fees.

10.4 You are solely responsible for exporting Your Data from the Confluent Services prior to termination of this Agreement.

11. Other

11.1 Assignment. You 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. Notwithstanding the foregoing, you shall have the right to assign this Agreement to any successor to your business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, conditioned upon (a) the parties’ mutual written agreement on any additional fees payable as a result of such assignment and (b) the payment of such fees. 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.

11.2 Publicity. You agree that Confluent may use your trade names, service marks and logos in marketing materials and customer lists for the purpose of advertising or publicizing your use of the Confluent Service.

11.3 Entire Agreement; Waiver. This Agreement, together with its exhibits, 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. You acknowledge that you have not entered in this Agreement based on any representations other than those contained herein. If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any purchase order from you or other document, the terms and conditions of this Agreement shall prevail. Any different or additional terms of any related purchase order or confirmation even if signed by the parties after the date hereof shall have no force or effect. 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.

11.4 Modifications. Confluent may modify this Agreement by posting a revised version on this site. If Confluent makes a material change to the Agreement, Confluent will notify you by email prior to such updated version of this Agreement taking effect, and such notice will include a summary of the modified terms and the date on which the updated version of the Agreement will take effect. If you access or use the Confluent Service after the effective date of any updated version of this Agreement, then that will constitute your acceptance and agreement to be bound by such updated Agreement.

11.5 Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

11.6 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. You hereby consent 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.

11.7 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.

11.8 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.

11.9 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 the Order Form or such other address as either party may specify in writing.

11.10 Export Compliance. You understand that the Confluent Service is subject to export control laws and regulations. You may not access or use the Confluent Service or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws. Without limiting the foregoing, neither the Confluent Service nor any underlying information or technology may be accessed or used: (a) by any individual or entity in any country to which the United States has embargoed goods; or (b) by 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. You hereby agree to the foregoing and represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

11.11 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

11.12 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.”

12. Definitions

“Acceptable Use Policy” means the obligations and restrictions set forth in Section 2.4 of this Agreement.

“Documentation” means Confluent’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via login to the Confluent Service.

“Fees” means the fees payable by you for the applicable Confluent Service, as specified in the Confluent Service “check-out” interface or in the Order Form, as applicable.

“Subscription Term” means the term specified in the Confluent Service “check-out” interface or in the Order Form, as applicable.

“Order Form” means an ordering document referencing this Agreement and specifying the Confluent Service to be provided, entered into between you and Confluent.

“Privacy Policy” means the privacy policy available at https://www.confluent.io/privacy/, as may be updated by Confluent from time to time.

“Your Data” means (i) all of your data entered or uploaded into the Confluent Service by you or on your behalf, and (ii) all data, information and metrics processed or generated by you or on your behalf within the Confluent Service.

“Your Personal Information” means the personal information that Confluent collects in relation to your customer relationship with Confluent and your use of Confluent’s website and the Confluent Service. Your Personal Information does not include Your Data.

If you have ordered Consulting Services from Confluent, the following terms apply:

1. Your Agreement with Confluent

1.1 Your use of the Consulting Services is governed by these Terms of Service (the “Agreement”). The “Consulting Service” means the professional services that Confluent makes available through its website. “Confluent” means Confluent, Inc., located at 101 University Avenue, Suite 111, Palo Alto, CA 94301.

1.2 Your use of the Consulting Services is subject to the terms of this Agreement. By agreeing to an Order Form that memorializes the Consulting Services or by clicking on a checkbox that demonstrates acceptance of this Agreement, you are agreeing to the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, then you represent and agree that you have the legal authority to bind that entity to this Agreement. If you do not accept the terms of this Agreement, then you cannot use the Consulting Services.

2. Confidential Information and Intellectual Property Rights

2.1 Intellectual Property Rights. Except for the license granted to Customer in the following sentence, Customer acknowledges and agrees that Confluent or its licensors own and shall retain all rights, title and interest, including but not limited to all patent, copyright, trade secret, know-how, design rights, trademark, and other intellectual property rights, in and to any and all materials provided to Customer in the course of the Consulting Services (the “Consulting Materials”). Subject to the payment of the Services Fees, Confluent grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as expressly stated otherwise in the Agreement) license to use the Consulting Materials solely in connection with Customer’s use of Apache Kafka or, if Customer has licensed the Confluent Platform, the Confluent Platform. Notwithstanding anything to the contrary herein, Confluent and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of performing Services hereunder.

2.2 Confidentiality. Each party shall retain in confidence the non-public information disclosed or made available by the other party pursuant to this Agreement that 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”). Notwithstanding any failure to so designate them, the terms and conditions of this Agreement and the Consulting Materials shall be Confluent’s Confidential Information. Each party agrees to: (i) preserve and protect the confidentiality of the other party’s Confidential Information; (ii) refrain from using the other party’s Confidential Information except as contemplated herein; and (iii) 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 use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party that is: (w) already publicly known without breach of this Agreement; (x) 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; (y) otherwise known to the receiving party without restriction on disclosure through no wrongful conduct of the receiving party, or (z) 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.

2.3 Equitable Relief. Each party agrees and acknowledges that any breach or threatened breach of Section 1(b) 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.

3. Independent Contractor

3.1 Confluent and Customer agree that in rendering all Consulting Services hereunder, Confluent and any person employed by Confluent to perform the Consulting Services shall act (and be considered for all purposes) as an independent contractor of Customer, and not as an employee or agent of Customer. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

4. Non-Solicitation

4.1 During the Term of the applicable Order Form and for one (1) year thereafter, neither party nor any of its subsidiaries or affiliates shall knowingly, except with the prior written consent of the other party solicit the employment of any person employed by or under contract with the other party or any subsidiary or affiliate of the other party if such person was directly involved with the Consulting Services provided under such Order Form within the preceding twelve (12) months. Notwithstanding the foregoing, this Section 3 shall not apply to general advertisements for employment that are not specifically directed at the other party’s or any of its subsidiaries’ or affiliates’ employees, consultants or independent contractors.

5. Warranties and Disclaimer

5.1 Each party warrants it has the right and power to enter into this Agreement, that an authorized representative has executed this Agreement, and that each will comply with any applicable laws and regulations pertaining to this Agreement. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4, CONFLUENT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONSULTING SERVICES OR ANY OTHER ACCOMPANYING MATERIAL 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 OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

6. Limitation of Liability

6.1 EXCEPT FOR BREACH OF SECTION 1(b), IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CONFLUENT FOR THE RELEVANT CONSULTING SERVICES UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR BREACH OF SECTION 1(b), NEITHER PARTY WILL BE LIABLE TO THE OTHER 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, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

7. Term and Termination

7.1 This Agreement shall commence on the effective date of the applicable Order Form(s) for the Consulting Services and shall continue until Confluent completes all Consulting Services provided thereunder unless earlier terminated in accordance with the terms hereof. Without prejudice to any other rights, if either party materially defaults in the performance of this Agreement, then the other party may give written notice to the defaulting party of such material default. If the noticed default is not cured within thirty (30) days (or five (5) days in the case of non-payment) following receipt of default notice by the defaulting party, then the non-breaching party shall have the immediate right to terminate this Agreement.

7.2 The rights and obligations of Confluent and Customer in Sections 2.1, 2.2, 2.3, 4, 5 (disclaimers only), 6, 7, 8 and 9 shall survive termination of this Agreement. Upon termination or expiration of this Agreement for any reason, all Services Fees for Consulting Services rendered prior to the effective date of such termination or expiration shall become immediately due and payable. 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.

8. Applicable Law

8.1 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. Any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the terms below. Either party may commence mediation by providing JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following forty-five (45) days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement, except that either party may institute an action in court for injunctive or other equitable relief at any time. The arbitration shall be administered by JAMS in Santa Clara County, California pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction.

9. Miscellaneous

9.1 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. Notwithstanding the foregoing, Customer 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, conditioned upon (i) the parties’ mutual written agreement on any additional fees payable as a result of such assignment and (ii) the payment of such fees. 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 8(a), this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

9.2 This Agreement, together with all Order Forms, 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.

9.3 All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

9.4 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. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

9.5 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.

9.6 The representations, warranties, covenants and agreements set forth in this Agreement are for the sole benefit of the parties hereto and their successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.

 

If you have ordered training services from Confluent, the following terms apply:

1. Your Agreement with Confluent

1.1 Your use of the Training Services is governed by these Terms of Service (the “Agreement”). The “Consulting Service” means the training services that Confluent makes available through its website. “Confluent” means Confluent, Inc., located at 101 University Avenue, Suite 111, Palo Alto, CA 94301.

1.2 Your use of the Training Services is subject to the terms of this Agreement. By agreeing to an Order Form that memorializes the Training Services or by clicking on a checkbox that demonstrates acceptance of this Agreement, you are agreeing to the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, then you represent and agree that you have the legal authority to bind that entity to this Agreement. If you do not accept the terms of this Agreement, then you cannot use the Training Services.

2. Course Materials and Proprietary Rights; Confidential Information

2.1 Confluent has developed certain proprietary training materials relating to the Training Courses (the “Course Materials”). The Course Materials, including any modifications, derivative works, improvements, or upgrades developed by or on behalf of Confluent or Customer are the exclusive property of Confluent. All rights in and to the Course Materials are reserved by Confluent. As used herein, “Training Courses” shall mean the training courses provided by Confluent to Customer as part of the training services (“Training Services”).

2.2 Customer shall pay to Confluent the fees for the Training Services set forth in the applicable order form(s) (each an “Order Form”) for such Training Services (“Training Fees”). Subject to the payment of the Training Fees, Confluent hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Course Materials solely in connection with the Training Courses provided by Confluent hereunder. Confluent reserves all rights not otherwise expressly granted in this Agreement.

2.3 Customer acknowledges this Agreement does not provide Customer with title to or ownership of the Course Materials, but only a right of limited use under the terms and conditions of this Agreement. Customer shall keep the Course Materials free and clear of all claims, liens and encumbrances. In the event ownership of any Course Material or modification thereto vests in Customer, Customer hereby assigns to Company all its right, title and interest in and to all intellectual property and other rights (and where relevant such assignment is by present assignment of future copyright) in such Course Material or modification, and waives any and all moral rights in such Course Material or modification to which it may now or in the future be entitled under the laws of any jurisdiction.

2.4 Customer acknowledges that the Course Materials may not be reproduced and Courses may not be recorded in any manner except as otherwise expressly specified in this Agreement. Copies of Course Materials shall be limited to those necessary to provide one copy per Attendee of the Course. Attendees shall not make any copies of the Course Materials other than for their own personal use.

2.5 Each party shall retain in confidence the non-public information 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”). Notwithstanding any failure to so designate them, the terms and conditions of this Agreement and the Course Materials shall be Confluent’s Confidential Information. Each party agrees to: (i) preserve and protect the confidentiality of the other party’s Confidential Information; (ii) refrain from using the other party’s Confidential Information except as contemplated herein; and (iii) 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 use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (w) already publicly known without breach of this Agreement; (x) 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; (y) otherwise known to the receiving party without restriction on disclosure through no wrongful conduct of the receiving party, or (z) 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.

2.6 Each party agrees and acknowledges that any breach or threatened breach of Section 1(e) 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.

3. Independent Contractor

3.1 For all purposes under this Agreement, Confluent shall be and act as an independent contractor of Customer and nothing in this Agreement is to be construed as creating an agency, partnership, fiduciary, employment or joint venture relationship between the parties hereto. All individuals performing Training Services on Confluent’s behalf are not, for any purpose whatsoever, (a) considered to be employees, independent contractors or agents of Customer or (b) entitled to any compensation or employee benefits from Customer. 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.

4. Warranties

4.1 Each party warrants it has the right and power to enter into this Agreement, that an authorized representative has executed this Agreement, and that each will comply with any applicable laws and regulations pertaining to this Agreement. Confluent warrants that the Training Services will be performed in a timely, professional and workmanlike manner.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 3, CONFLUENT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TRAINING SERVICES, COURSE MATERIALS OR ANY OTHER ACCOMPANYING MATERIAL 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 OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS 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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

5. Limitation of Liability

5.1 EXCEPT FOR BREACH OF SECTION 1, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CONFLUENT FOR THE RELEVANT TRAINING SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR BREACH OF SECTION 1, NEITHER PARTY WILL BE LIABLE TO THE OTHER 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, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. Non Solicitation

6.1 During the term of this Agreement and for one (1) year thereafter, neither party nor any of its subsidiaries or affiliates shall knowingly, except with the prior written consent of the other party, solicit the employment of any person employed by or under contract with the other party or any subsidiary or affiliate of the other party if such person was directly involved with the Training Services provided under this Agreement then or within the preceding twelve (12) months. The foregoing limitation shall not apply to general advertisements for employment that are not specifically directed at the other party’s or any of its subsidiaries’ or affiliates’ employees, consultants or independent contractors.

7. Term and Termination

7.1 This Agreement shall commence on the effective date of the applicable Order Form for the Training Services and shall continue until Confluent completes the Training Services provided thereunder unless earlier terminated in accordance with the terms hereof. Without prejudice to any other rights, if either party materially defaults in the performance of this Agreement, then the other party may give written notice to the defaulting party of such material default. If the noticed default is not cured within thirty (30) days (or five (5) days in the case of non-payment) following receipt of default notice by the defaulting party, then the non-breaching party shall have the immediate right to terminate this Agreement.

7.2 The rights and obligations of Confluent and Customer in Sections 2.3, 2.4, 2.5, 2.6, 3, 4 (disclaimers only), 5, 6, 7, 8 and 9 shall survive termination of this Agreement. Upon termination or expiration of this Agreement for any reason, all Training Fees for Training Services rendered prior to the effective date of such termination or expiration shall become immediately due and payable. 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.

8. Applicable Law

8.1 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. Any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the terms below. Either party may commence mediation by providing JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following forty-five (45) days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement, except that either party may institute an action in court for injunctive or other equitable relief at any time. The arbitration shall be administered by JAMS in Santa Clara County, California pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction.

9. Miscellaneous

9.1 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. Notwithstanding the foregoing, Customer 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, conditioned upon (i) the parties’ mutual written agreement on any additional fees payable as a result of such assignment and (ii) the payment of such fees. 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 8(a), this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

9.2 This Agreement, together with all Order Forms, 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.

9.3 All remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

9.4 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. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section, and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.

9.5 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.

9.6 The representations, warranties, covenants and agreements set forth in this Agreement are for the sole benefit of the parties hereto and their successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.

 

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