CONFLUENT SUBSCRIPTION AGREEMENT

PLEASE READ THIS SUBSCRIPTION AGREEMENT BEFORE USING THE CONFLUENT PRODUCTS. BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY USING THE CONFLUENT PRODUCTS, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE CONFLUENT PRODUCTS.

This Confluent Subscription Agreement (“Agreement”) is entered into by and between Confluent, Inc. (“Confluent”) and the purchaser or user of the Confluent offering that accepts the terms of this Agreement (“Customer”). The effective date of this Agreement (the “Effective Date”) is the date that Customer executes an applicable Order Form.

1. License, Support and Orders.

1.1 Subscription. Customer’s subscription includes Support Services and a license to Confluent Software, as described below.

1.2 License Terms. Subject to the terms of this Agreement and the applicable Order Form, Confluent grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the applicable Term to install and use Confluent’s proprietary software (“ Confluent Software”) solely for Customer’s internal business operations. Customer may permit its third-party service providers to install and use the Confluent Software to provide outsourced services to Customer, and Customer will be solely responsible for such service provider’s compliance with this Agreement.

1.3 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) use the Confluent Software for third-party training, software-as-a-service, time-sharing or service bureau use or (b) disassemble, decompile or reverse engineer any portions of the Confluent Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such Confluent Software (or the underlying ideas, algorithms, structure or organisation of the object code in the Confluent Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer the Confluent Software, Customer shall first provide Confluent with written notice thereof. Customer acknowledges and agrees that all information required to achieve interoperability for the purposes of this Agreement in accordance with section 50B of the Copyright, Designs and Patents Act 1988, as amended, is available from Confluent pursuant to this Agreement.

1.4 Copies. Section 1.2 includes the right for Customer to make copies of the Confluent Software as necessary to exercise the licences granted in Section 1.2, and a reasonable number of back-up or archival copies, provided that each such copy shall include Confluent’s copyright and any other proprietary notices that appear on the original copies of the Confluent Software.

1.5 Confluent Audit Rights. Confluent reserves the right, upon prior notice to Customer, to audit usage of the Confluent Software at Customer’s premises (and at the premises of or via virtual access to Customer’s hosting providers) during normal business hours to verify Customer’s compliance with the terms of this Agreement. If Confluent determines as a result of such audit that any fees are due from Customer to Confluent under the terms of this Agreement, Customer shall immediately pay such amounts due along with interest at the rate of 4 percent (4%) per annum over the base rate for the time being of Barclays Bank PLC (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative fees previously paid under this Agreement, Customer shall reimburse Confluent for the reasonable cost of such audit.

1.6 Reservation of Rights. Confluent reserves all rights not expressly granted in this Section. No rights are granted by implication.

1.7 Delivery of Materials. The Confluent Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. The parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means.

1.8 Support Services. As part of Customer’s subscription, Confluent shall provide the support and maintenance services specified in the applicable Order Form (“Support Services”).

2. Fees, Taxes and Payment Terms.

2.1 Fees. All amounts stated in this Agreement are in U.S. dollars. Customer shall pay Confluent the fees in the amount set forth in the applicable Order Form (“Fees”) in accordance with the Order Form terms.

2.2 Taxes. All amounts stated in this Agreement exclude value added tax (as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature). Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable value added, customs, duties, sales, use, withholding, or other taxes, 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, it 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.

2.3 Payment Terms. Except as otherwise set forth in the applicable Order Form, all amounts payable to Confluent under this Agreement will be due within thirty (30) days from the date of an invoice. In addition, Confluent reserves the right to immediately suspend Customer’s licence to the Confluent Software upon notice to Customer for any failure by Customer to pay any amount due and payable hereunder in accordance with this Section.

3. Ownership.

Customer acknowledges that Confluent or its licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Confluent Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest in Confluent. Customer acknowledges that the licences granted in Section 1.2 do not include the right to prepare any Modifications of the Confluent Software.

4. Confidentiality 

4.1 Nondisclosure and Limited Use. 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”). The Confluent Software, Modifications, information made available by Confluent to Confluent’s subscription customers and the terms and conditions of this Agreement shall be Confluent’s Confidential Information regardless of whether marked as such. 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 which the receiving party agrees to enforce). Each party shall immediately notify the other party of any unauthorised disclosure or use of any Confidential Information and assist the other party in remedying such unauthorised use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall, to the extent legally permissible, 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, lawyers and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein which the receiving party agrees to enforce) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

4.2 Remedies. 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 in addition to any other rights or remedies provided by law.

5. Limited Warranty.

5.1 Scope of Limited Warranty. Confluent warrants to Customer that for a period of thirty (30) days after the first delivery of the Confluent Software by Confluent to Customer, the Confluent Software in the form delivered by Confluent to Customer, will perform substantially in accordance with the written documentation therefor. This limited warranty shall not apply if the Confluent Software has been: (i) altered or modified; (ii) subjected to negligence, computer or electrical malfunction; or (iii) used, adjusted, installed or operated (A) other than in accordance with this Agreement or the instructions furnished by Confluent or (B) with an application or in an environment other than that intended or recommended by Confluent.

5.2 Exclusive Remedy. Confluent’s sole liability and Customer’s exclusive remedy under the limited warranty set forth above will be, at Confluent’s election, to attempt, through reasonable efforts and where technically feasible, to correct any failure of the Confluent Software to conform to its written documentation or to replace the non-conforming software. The above remedy is available only if (a) discovery of the non-conformity occurs during the applicable warranty period, (b) Customer notifies Confluent in writing by Customer of such discovery within the warranty period, and (c) Confluent’s examination of the Confluent Software discloses that such non-conformity exists.

5.3 Disclaimer of Any Other Warranties. Except for the express, limited warranty provided in this section, Confluent makes no warranties, express, implied, statutory, or otherwise, with respect to the Confluent Software or any other materials or support 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 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. Except as expressly provided herein, the Confluent Software is provided on an “as is” and “as available” basis. Nothing in this Agreement shall exclude Confluent’s liability for death or personal injury caused by its negligence, fraud or anything else that cannot be limited or excluded by law.

6. Infringement Indemnification. Confluent shall defend or at its option settle, at its own expense, any third-party claim, demand or lawsuit brought against Customer to the extent alleging facts that, if true would constitute an infringement by the Confluent Software of a third party intellectual property right, and will pay such damages or costs as are finally awarded against Customer attributable to such action, provided that Customer: (a) notifies Confluent promptly in writing of any such action; (b) gives Confluent sole control of the defence or settlement of such action; and (c) gives Confluent all reasonable information and assistance, at Confluent’s expense. Should the Confluent Software become, or in the opinion of Confluent be likely to become, the subject of such an infringement claim, Confluent shall, at its option, either: (i) procure for Customer the right to use the allegedly infringing element of the Confluent Software, at no charge to Customer; (ii) replace or modify, in whole or in part, the Confluent Software to make it non-infringing; or (iii) accept return of the Confluent Software, or remove the allegedly infringing module thereof, and, refund a pro rata portion of the Fees paid by Customer for the then-current Confluent assumes no liability hereunder for any claim of infringement to the extent based on: (w) use of software other than a current unaltered release of the Confluent Software, as provided by Confluent to Customer (including but not limited to Customer’s failure to update the Confluent Software as required from time to time); (x) the combination, operation or use of the Confluent Software, with non-Confluent programs or hardware, (y) any alteration or modification of the Confluent Software by a party other than Confluent, or (z) open source software. This section sets forth Confluent’s entire liability and obligation and Customer’s sole remedy for any claim of infringement of any intellectual property rights.

7. Limitation of Liability. Except for breach of section 1.2 or 1.3, failure to pay licence fees payable hereunder, breach of section 4, and indemnification obligations contained in this Agreement:

(a) in no event shall either party’s liability arising under this Agreement exceed the amount paid or payable by customer to confluent during the twelve (12) months immediately prior to the event giving rise to such liability, and

(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, or for any claim or demand by any other party, however caused and (to the fullest extent permitted by law) under any theory of liability (including negligence) even if such party has been advised of the possibility of such damages.

These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

8. Term and Termination.

8.1 Term. Unless earlier terminated as provided in this Section, this Agreement is effective as of the Effective Date and will continue until the expiration or termination of the Term of the Order Form. The Order Form will specify an initial term (“Initial Term”), which will automatically renew for periods of twelve (12) months at Confluent’s then-current pricing unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current Term (each a “ Renewal Term,” and collectively together with the Initial Term, the “Term”).

8.2 Termination. Either party may terminate this Agreement and any Order Form upon breach by the other party of any material obligation under this Agreement which has not been cured within thirty (30) days after providing written notice of such breach to the other party.  Confluent may also terminate this Agreement immediately if: (a) the Customer terminates or suspends its business; (b) the Customer passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the winding-up or the dissolution of Customer; (c) any steps are taken for the making of an administration order or the appointment of an administrator under the out-of-court procedure under the Enterprise Act 2002 or notice is given of an intention to appoint an administrator in relation to the Customer or any steps are taken for the appointment of a receiver or administrative receiver, or an encumbrancer takes possession of or sells any of the Customer’s assets; (d) the Customer makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally; or (e) the Customer is unable to pay its debts (within the meaning of that term under section 123 of the Insolvency Act 1986).

8.3 Effect of Termination. The rights and obligations of Confluent and Customer in{' '} Sections 1.5 (Audits), 1.6 (Reservation of Rights), 2 (Fees and Payment Terms), 3 (Ownership), 4 (Confidentiality), 5.3 (Disclaimer of Any Other Warranties), 6 (Infringement Indemnification), 7 (Limitation of Liability), and 9 (Miscellaneous) {' '} shall survive termination of this Agreement. No later than five (5) days after termination of this Agreement, Customer shall return to Confluent or, upon Confluent’s request, destroy or render inaccessible, at Customer’s sole expense, all Confidential Information of Confluent and materials containing any Confidential Information of Confluent, and discontinue use of and uninstall the Confluent Software, including all copies thereof. 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.

9. Miscellaneous.

9.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Confluent’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, Customer shall have the right to assign or transfer this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation or otherwise, conditioned upon (a) the parties’ mutual written agreement on any additional fees payable as a result of such assignment or transfer and (b) the payment of such fees. Confluent shall have the right to assign or transfer this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation 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.

9.2 Entire Agreement; Modification; Waiver. This Agreement, together with its exhibits and 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. 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. 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.

9.3 Third Party Software. Confluent also makes available certain third party open source software as identified at{' '} http://www.confluent.io/third_party_software {' '} (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by Confluent at no charge. Confluent makes no warranties, express or implied, and will not be obligated under Section 6 with respect to any Third Party Software.  To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require Confluent to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.

9.4 Delays. 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 Governing Law. This Agreement shall in all respects be governed by the laws of England and Wales without reference to its principles of conflicts of laws. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

9.6 Dispute Resolution. Any dispute arising out of or in connection with this Agreement including any question relating to its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA Rules), which are deemed to be incorporated by reference into this Section

(a) The number of arbitrators shall be 1.

(b) The place of arbitration shall be London.

(c) The language to be used in the arbitration proceedings shall be English.

9.7 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.

9.8 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.

9.9 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 this Agreement or such other address as either party may specify in writing.

9.10 Export Law Assurances. Customer understands that the Confluent Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Confluent Software or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws. None of the Confluent Software or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list.

9.11 Third Party Rights . Except insofar as this Agreement expressly provides that a third party may in his own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 (“1999 Act”) to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from under the 1999 Act.

9.12 Further Customer shall at its own cost and expense execute or cause to be executed all documents and do or cause to be done all further acts and things that Confluent may from time to time reasonably require in order to vest in and secure to Confluent and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Confluent under this Agreement and for the protection and enforcement of the same and otherwise to give full effect to the terms of this Agreement.

9.13 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.” Any reference to a statute, statutory provision, subordinate legislation, code or guideline (“legislation”) is a reference to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation.

(v. July 2017)

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