These Terms and Conditions for Services Engagements along with any accompanying Supplemental Terms for Services Engagements Exhibit (together, the “Agreement”) are an integrated part of the order form that references these terms (“Order”). All capitalized terms not otherwise defined herein will have the meanings assigned to them in the Order or the Supplemental Terms for Services Engagements Exhibit.
1. ORDERING AND PROVISION OF SERVICES
1.1 Scope of Services. Confluent shall perform Services as set forth in the applicable Order. All Services are subject to the Supplemental Terms for Services Terms Exhibit located at: https://confluent.io/supplemental-services-terms. Confluent shall have no obligation to deliver any Services not expressly ordered in an Order.
1.2 Fees and Payment. Customer shall pay Confluent the fees (“Services Fees”) in the amount specified in the applicable Order in accordance with the Order terms.
1.3 Taxes. Customer will pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement, excluding only taxes based on Confluent’s net income. If Customer is compelled to make a deduction or set-off for any such taxes, Customer will pay Confluent such additional amounts as necessary to ensure receipt by Confluent of the full amount Confluent would have received but for the deduction.
1.4 Late Payments. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Upon written notice to Customer, Confluent may suspend its performance under this Agreement for failure to pay any amounts owed when due.
2. INTELLECTUAL PROPERTY OWNERSHIP
2.1 Services Materials. 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 (including training materials) provided to Customer in the course of performing the Services (the “Services Materials”) as well as any training or education materials provided by Confluent (“Course Materials”), including any changes, corrections, bug fixes, enhancements, improvements, updates, upgrades, derivative works, and other modifications to the Services Materials or Course materials. Subject to the payment of the Services Fees and the terms of this Agreement and the applicable Order(s), Confluent grants to Customer a limited, non-exclusive, non sublicensable, non-transferable (except as expressly stated otherwise in the Agreement) license to use the Services Materials solely in connection with Customer’s use of Confluent Platform, Confluent Software, or Confluent’s Cloud Services.
2.2 Customer Materials. If Customer provides or otherwise makes available to Confluent any software, data, or other materials belonging to Customer in connection with this Agreement, then Confluent may reproduce, modify, and use the same in connection with its provision of the Services. Other than the foregoing sentence, Customer retains own and shall retain all rights, title, and interest in all materials provided to Confluent.
2.3 Feedback. Customer has no obligation to provide Confluent any suggestions, enhancement requests, recommendations, or other feedback regarding Confluent’s products and services (“Feedback”). However, Confluent may use and include any Feedback that Customer provides in Confluent’s products and services without restriction or payment. 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, methods, techniques, or skills gained or learned during the course of performing Services hereunder, but only to the extent that such information does not contain any identifiable Confidential Information of Customer.
3.1 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 (“Confidential Information”). Notwithstanding any failure to so designate them, the terms and conditions of this Agreement and the Services Materials shall be Confluent’s Confidential Information. Each party shall (a) maintain the confidentiality of the other party’s Confidential Information using at least a reasonable degree of care; (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 Confidential Information to any party except to its and its affiliate’s employees, subcontractors and agents as is reasonably required in connection with this Agreement and who are subject to confidentiality obligations at least as protective as those set forth in this section. 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 (i) is or becomes publicly known without breach of this Agreement; (ii) is 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; or (iii) is otherwise known to the receiving party without confidentiality restrictions and through no wrongful conduct of the receiving party. Receiving party may disclose Confidential Information to the extent required by law or court order if the receiving party provides prompt notice and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
3.2 Injunctive Relief. Any breach or threatened breach of section 3 may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law.
4. WARRANTIES AND DISCLAIMERS
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.
4.2 Confluent represents and warrants that it will provide the Services in a professional manner, employing a standard of care, skill and diligence consistent with industry standards. Confluent's entire obligation and Customer’s sole remedy for a breach of this section 4.2 will be for Confluent to use commercially reasonable efforts to re-perform the Services.
4.3 EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4, CONFLUENT MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES OR ANY OTHER ACCOMPANYING MATERIALS PROVIDED HEREUNDER. CONFLUENT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT 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. UNLESS OTHERWISE STATED IN AN ORDER, CONFLUENT SHALL HAVE NO OBLIGATION TO PROVIDE ANY MAINTENANCE OR SUPPORT SERVICES FOR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT.
5. LIMITATION OF LIABILITY.
5.1 NOTHING IN THIS AGREEMENT LIMITS EITHER PARTY’S (I) LIABILITY FOR PERSONAL INJURY, DEATH OR WILLFUL MISCONDUCT; (II) LIABILITY THAT CANNOT BE LIMITED BY APPLICABLE LAW; OR (III) BREACH OF SECTION 1.2 (INTELLECTUAL PROPERTY RIGHTS) OR SECTION 3 (CONFIDENTIALITY).
5.2 EXCEPT AS PROVIDED IN SECTION 5.1 ABOVE, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CONFLUENT FOR SERVICES UNDER THE APPLICABLE ORDER(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, AND 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. TERM AND TERMINATION
6.1 This Agreement shall commence on the effective date of the applicable Order(s) for the Services and shall continue until Confluent completes all 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) following receipt of default notice by the defaulting party, then the non- breaching party shall have the immediate right to terminate this Agreement.
6.2 The rights and obligations of Confluent and Customer in sections 1.2, 3, 4.2, and 5 shall survive termination of this Agreement. Upon termination or expiration of this Agreement for any reason, all Services Fees for 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.
7.1 Assignment. Neither party may 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 the other party’s prior written consent, except to an Affiliate or 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. Any purported transfer, assignment or delegation without such prior written consent will be void. Subject to this section, this Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns.
7.2 Delays. In the event that either party 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 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.
7.3 Governing Law. This Agreement is governed by the laws of the State of California without regard to its conflicts of laws principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California. The parties consent to the personal and exclusive jurisdiction and venue of these courts. The parties disclaim and exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
7.4 Export Compliance. Service Materials are subject to export control laws and regulations. Customer may not access, use, download or otherwise export or re-export the Services Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws.
7.5 Insurance. During the Term, each party will obtain and maintain, at its own expense, insurance appropriate with respect to performance of the party’s respective obligations under this Agreement, including commercial general liability, errors and omissions, worker’s compensation and employer liability as required by applicable law, and automobile liability.
7.6 Other. This Agreement, together with its exhibits, addendums and any incorporated terms, represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to its subject matter, and is not intended to confer upon any third party any rights or remedies. Customer acknowledges that it has not relied on any representations other than those contained in this Agreement. The terms of this Agreement will supersede any additional or conflicting term in any purchase order or other purchasing-related document issued by Customer and relating to an Order. In the event of any perceived inconsistency, the terms of any Order shall control, followed by these Terms and Conditions for Services Engagements, and then the Supplemental Terms for Services Engagements Exhibit. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it will be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. Nothing in this Agreement will be construed as creating an agency, partnership, or joint venture relationship between the parties. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect. Notices will be in writing and deemed 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 or such other address as either party may specify in writing. Each party represents and warrants that the individual binding a party under this Agreement and any Order is authorized to do so.