TERMS AND CONDITIONS GOVERNING TRAINING SERVICES
Date of Last Revision: June 28th, 2017
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO THE PROVISION BY US OF SERVICES TO ANY PERSON OR ENTITY THAT PURCHASES THE HEPTIO® UNIVERSITY TRAINING SERVICES (OR OTHER TRAINING SERVICES THAT WE OFFER TO CUSTOMERS FROM TIME TO TIME) (EACH, A “SERVICE” AND, COLLECTIVELY, THE “SERVICES”) BY REGISTERING FOR SUCH SERVICES AT HTTPS://WWW.HEPTIO.COM/SUPPORT-SERVICES-AND-TRAINING OR A SUCCESSOR SITE (THE “TRAINING SITE”) OR PURSUANT TO AN ORDER FORM THAT WE PROVIDE TO YOU (EACH, AN “ORDER FORM”) AND THAT IS EXECUTED AND RETURNED TO US BY YOU. NO ORDER FORM IS DEEMED BINDING UPON US UNLESS AND UNTIL WE ACCEPT IT, WHICH ACCEPTANCE IS EVIDENCED EXCLUSIVELY BY US EXECUTING AND RETURNING A SIGNED COPY OF THE ORDER FORM TO YOU. WE USE THE TERM “AGREEMENT” TO REFER TO THIS DOCUMENT AND THE ACCEPTED ORDER FORM, IF ANY, BETWEEN US AND YOU. WE USE THE TERMS “HEPTIO,” “WE,” “US,” AND “OUR” TO REFER TO HEPTIO, INC., A DELAWARE CORPORATION WITH ITS PRINCIPAL CORPORATE OFFICE LOCATED AT 901 FIFTH AVENUE, SUITE 3310, SEATTLE, WASHINGTON 98164, U.S.A. WE USE THE TERMS “CUSTOMER,” “YOU,” AND “YOUR” TO REFER TO YOU OR, IF APPLICABLE, THE ENTITY THAT YOU REPRESENT. ALSO, EITHER US OR YOU MAY BE REFERRED TO AS A “PARTY” AND, COLLECTIVELY, AS THE “PARTIES.” THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN US AND YOU. READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR, ACCESSING, AND/OR USING ANY ASPECT OF THE SERVICES. BY REGISTERING FOR, ACCESSING, OR USING ANY ASPECT OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT REGISTER FOR, ACCESS, OR USE ANY ASPECTS OF THE SERVICES. IF YOU ARE REGISTERING FOR, ACCESSING, OR USING THE SERVICES ON BEHALF OF AN ENTITY THAT YOU REPRESENT AS AN EMPLOYEE OR OTHER AGENT, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF.
You may purchase Services from us by registering at the Training Site or by executing and returning to us an Order Form. We will use commercially reasonable efforts to perform Services purchased by you in accordance with this Agreement. The Services are only for your internal use, and you may not use the Services to supply any consulting, support, or training services to any third party. The Services will be performed in a professional and workmanlike manner by persons (“Trainers”) who, in our reasonable judgment, are qualified to perform the Services. The Services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101.
- PAYMENTS; TAXES
You agree to pay us the fees described on the Training Site or, if applicable, in the Order Form. If there is a conflict between the fees described on the Training Site and those described in the Order Form, you will pay those described in the Order Form. You are responsible for, and will pay, all sales, use, excise, and value-added taxes, duties, and surcharges, if any, levied upon the delivery or use of the Services, unless you provide us with a valid tax exemption certificate or similar instrument. Unless otherwise specified in an Order Form, all invoices for fees in consideration for performance of the Services will be paid in US Dollars, and all fees are due upon receipt of the applicable invoice. Payments will be made without right of set-off or chargeback. If you do not pay an invoice when due, we are permitted to charge interest at a rate of one percent per month on the unpaid balance, except that for Customers who are federal government entities, payment shall be made in accordance with the Prompt Payment Act (31 U.S.C. 3901) and any applicable prompt payment regulations promulgated by the government of the United States.
- YOUR OBLIGATIONS
You will access and use the Services solely for the purpose, or purposes, for which we designed the Services. Further, you will ensure that all persons booked to receive training are appropriately qualified to participate, arrive on time for training (and, in any event, not later than 20 minutes after each training’s scheduled start time), and conduct themselves in an appropriate manner (and, in any event, in a manner consistent with applicable state and federal laws, rules, regulations, and policies). You hereby acknowledge and agree that Trainers have the right, in their reasonable discretion, to exclude from a training session any person whose conduct is not in compliance with this Section 3. You are responsible for all acts and omissions related, directly or indirectly, to accessing and using the Services by you and anyone who gains access to or use of the Services through you, including, without limitation, your employees and agents.
- OWNERSHIP; CONFIDENTIAL INFORMATION
You acknowledge that you may obtain proprietary information and materials, including copies thereof, about our business, products, services, and programming techniques, and you hereby agree that all such information and materials, including all such copies, obtained by you are our confidential information (“Confidential Information”). You will protect and not disclose or use Confidential Information except as expressly permitted by this Agreement. Further, we retain all right, title, and interest in and to the Confidential Information and all of our training courses and materials (collectively, the “Materials”), including any and all intellectual property rights therein and related thereto anywhere in the world and all authorized and unauthorized derivative works thereof. You are entitled to keep and use the Materials that we provide to you in connection with the Services that we perform for you solely for your own personal, internal use; without any modification, alteration, or translation; and without any disclosure, transfer, or redistribution to any third party. For the avoidance of doubt, use of Materials will be limited to the specific person, or persons, for whom we provide the Services. You will preserve any and all proprietary rights notices that are included in or accompany the Materials, and you will not deliberately modify or remove any such notices. You will not use our brands, trademarks, service marks, logos, or trade names without our express written consent. All rights not specifically granted in this Agreement are reserved by us.
We warrant that we will perform the Services in a professional and workmanlike manner consistent with generally accepted practices in the industry. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT WILL WE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, LOSS OF ANTICIPATED REVENUE, LOSS OF BUSINESS, LOSS OF DATA, LOSS DUE TO ANY INABILITY TO USE OR OBTAIN DATA, LOSS DUE TO ANY BUSINESS INTERUPTIONS, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE, EVEN IF WE ARE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OR LOSSES OCCURRING. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 5 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- THIRD-PARTY PRODUCTS; FREE AND OPEN SOURCE SOFTWARE
You acknowledge that, in order for us to provide the Services to you, you may be required to license, use, and/or install certain third-party code, libraries, or other software and provide certain third-party hardware that is not provided by us or licensed to you by us (“Third Party Products”). We may provide you with links and instructions for obtaining Third-Party Products, but it is your responsibility to properly license, use, and install any Third-Party Products from the relevant third party providers. You acknowledge and agree that we will have no liability with respect to any Third-Party Products. In the event of a failure by you to timely provide Third-Party Products, as required, we may treat the applicable Order Form as having been cancelled by you. Third-Party Products may include source code, libraries, or other software that is licensed to licensees on a free or open-source basis (collectively, “Free and Open Source Materials”). If, in connection with the Services, you access, modify, enhance, prepare derivative works of, contribute to, integrate, combine, aggregate, distribute, or otherwise use any Free and Open Source Materials, your rights and responsibilities with respect to such Free and Open Source Materials will be governed solely by the terms and conditions set forth in the license agreement, or license agreements, pursuant to which such Free and Open Source Materials are licensed to the general community of developers and users. We and you will retain ownership of and/or rights to elements of Free and Open Source Materials in accordance with the terms and conditions underlying the use and licensing thereof, as set forth in the applicable license agreement, or license agreements, pursuant to which the applicable Free and Open Source Materials are licensed.
Unless earlier terminated in accordance with this Section 7, this Agreement will remain in effect until both Parties’ obligations are fully discharged. Either Party may terminate this Agreement upon written notice to the other Party in the event that such other Party fails to cure a material breach of this Agreement within a reasonable period of receiving written notice of such breach (but, in any event, within 30 days after receipt of such notice). We may terminate this Agreement immediately upon written notice to you in the event that you fail to timely pay any amounts due hereunder or fail to provide any required Third-Party Products. Upon the expiration or termination of this Agreement, Sections 2, 4, and 5-9 will survive. If you wish to reschedule any Services, you must provide us with not less than 14 days’ advance written notice, and you will pay the applicable fees set forth in an Order Form. Subject to the foregoing, we will work together with you in good faith to reschedule the Services. If we wish to reschedule any Services due to one or more Trainers becoming injured or ill or due to one or more other personal emergencies, we may do so by providing you with reasonable advance notice, which notice may be immediate where necessitated by the applicable circumstances.
- PERSONAL DATA
The Parties will comply with all obligations under applicable law as regards the collection, storage, processing, transmission, and protection of personally identifiable information.
The relationship between us and you is that of independent contractors. Consistent with each Party’s status as an independent contractor, each Party will retain the sole and exclusive right to supervise, control, or direct the manner or means by which it performs its duties and exercises its rights under this Agreement, including the use of subcontractors. Nothing in this Agreement is to 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 whatsoever. The Parties shall not assign any of their rights and/or obligations under this Agreement in whole or in part to any third party other than an acquiring, acquired, or merging entity, without the express written consent of the other Party. All notices and other communications required or permitted under this Agreement will be in writing, addressed to the applicable Party at the address provided by such Party to the other, and deemed effectively delivered only upon personal delivery, upon delivery by a courier service as confirmed by written delivery confirmation, upon delivery by facsimile as confirmed by transmission receipt, or five days after deposit in the mail, postage prepaid. This Agreement shall be binding upon and inure to the benefit of the Parties’ permitted successors and assigns. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, notwithstanding any different or additional terms that may be contained in the form of a purchase order or other document used by you to place orders or otherwise effect transactions, which terms are hereby expressly rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals, and agreements between the Parties relating to the subject matter of this Agreement. No term or provision of this Agreement will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party. Except as otherwise set forth in the next sentence below, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both Parties. We reserve the right to change or modify the terms and conditions of this Agreement, or any policy or guideline governing your access to and use of the Services, at any time and in our sole discretion; provided, that, in the event that we make a modification of the terms and conditions of this Agreement and you are a registered user of the Services, we will notify you of the modifications and allow you to review and accept the Agreement, as modified, prior to continuing to use the Services. However, your continued use of the Services, following notice of modifications to this Agreement, will constitute your acceptance of this Agreement, as modified. If you do not agree to any modifications of this Agreement, as they may occur, you will immediately discontinue accessing and/or using the Services. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and will be reformed to the extent necessary to make such provision valid and enforceable. Neither Party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of us and you and do not create any right in favor of any third party. This Agreement and all disputes, claims, or controversies arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity, enforceability, performance, interpretation, breach, or termination will be governed by and construed in accordance with the substantive local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods, except that if you are an entity of the U.S. government, this Agreement will be governed by the federal laws of contract. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington, U.S.A., in connection with any action arising out of or in connection with this Agreement, except that with respect to a Customer that is an entity of the U.S. government, in which case any litigation shall be in such court or forum and as required by federal laws and regulations. In the event of any litigation between the Parties hereto, the prevailing Party will be entitled to recover reasonable attorney’s fees and costs in addition to such other relief as the court may award.