These MASTER SERVICE TERMS AND CONDITIONS (the “Agreement “) are entered in between Heptio Inc., a Delaware corporation, with its principal place of business at 901 Fifth Avenue, Suite 3310, Seattle, Washington 98164 (“Heptio“) and the party who executes an Order Form (“Customer“). Collectively, Heptio and Customer shall be known individually as “party” or collectively as the “parties.”
The parties agree as follows:
1. SERVICES .
1.1 SERVICE SCOPE . Heptio shall provide services as agreed upon by the parties in the order form (hereinafter referred to as an ” Order Form“). Consistent with Heptio’s status as an independent contractor, Heptio will retain the sole and exclusive right to supervise, control, and direct the manner and means by which it conducts the Services. Each Order Form, will describe the Services to be performed by Heptio, including, if and when applicable, the compensation and other consideration for such Services; a payment schedule or other custom payment terms; responsibilities on the part of the Customer, including Customer Requirements (as that term is defined Section 1.3 below); the Specifications and Acceptance Criteria (as those terms are defined in Section 1.4 below); a schedule of deliverables; the term of the Order Form; a description of reimbursable expenses; and any other terms and conditions mutually agreed upon by the Parties in connection with Heptio’s performance of the Services. Each Order Form will be mutually agreed upon, executed by both Parties, sequentially numbered, and reference this Agreement. If there is a conflict between the terms of this Agreement and the terms and conditions set forth in an Order Form, the terms of this Agreement will control, unless the Order Form expressly states that a specific provision of this Agreement is superseded by a specific provision of the Order Form.
1.2 CHANGE ORDERS . Customer may request that changes be made to the Services described in the Order Form (e.g., an addition, a deletion, or another modification to the applicable deliverables) by means of a change order form (each, a ” Change Order“). If a Change Order recites changes that materially increase the scope of the Services or the time, effort, or expense required to perform the applicable Services, then within ten (10) business days after Heptio’s receipt of that Change Order, Heptio will provide to Customer a summary of the modifications to be made to the applicable Order Form in order to effect the requested change. During the ten (10)-business-day period following Customer’s receipt of Heptio’s estimate, the Parties will work together in good faith to prepare a revised Order Form. If, within such ten (10)-business-day period, the Parties are unable to agree on a revised Order Form, the then-existing Order Form will remain in full force and effect, and Heptio will have no further obligation with respect to the applicable Change Order. If the Parties are able to agree on a revised Order Form, the mutually agreed-upon changes will be memorialized in an amendment to the Order Form, which will be attached to the then-existing Order Form and this Agreement. All notices pursuant to this Section will be in writing (an email that receives a written, non-automated response from the intended recipient will suffice).
1.3 CUSTOMER REQUIREMENTS . Each Order Form will set forth the responsibilities on the part of the Customer and the Customer Requirements applicable to the Services to be performed pursuant to that Order Form. ” Customer Requirements” means Customer’s business requirements, technical data, computer facilities, network access, programs, software, files, lists, documentation, test data, sample output, feedback, or other information, equipment, materials, assistance, and resources in Customer’s possession or control that it is necessary or advisable for Heptio to have, or have access to, in order to effectively perform the Services set forth in the applicable Order Form. Customer will make Customer Requirements readily available to Heptio in a timely manner at no charge. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness, and consistency of any and all Customer Requirements supplied by Customer, including being responsible for any fees, expenses, and other costs incurred or accrued during any resulting delay, or delays. Customer acknowledges that the timely provision of and access to the Customer Requirements may be essential to Heptio’s performance of the Services and that Heptio’s ability to complete the Services may be dependent upon the same. If Customer fails to provide the Customer Requirements necessary for Heptio to fulfill an obligation hereunder, Heptio is discharged from any such obligation until Customer provides such information and/or assistance.
1.4 ACCEPTANCE PROCEDURE . For time and materials projects, unless otherwise specified in the Order Form, the acceptance period shall be ten days after delivery of a Service deliverable. After Heptio’s delivery of the applicable deliverable, Customer will promptly inspect the deliverable to verify that it conforms to the mutually agreed-upon design specifications (the ” Specifications“) and test it in accordance with the mutually agreed-upon acceptance criteria (the ” Acceptance Criteria“). To the extent that Specifications and Acceptance Criteria apply, they will be mutually agreed upon by the Parties and set forth in the applicable Order Form. If Customer determines that a deliverable does not conform to the Specifications or does not pass the Acceptance Criteria, it will notify Heptio of its determination in a notice that describes the non-conformities exhibited by the deliverable (each, a “Rejection Notice“). A deliverable will be deemed accepted by Customer when Customer delivers a notice of acceptance to Heptio (each, an “Acceptance Notice“) or if Customer fails to deliver a Rejection Notice or an Acceptance Notice on or before the date that is ten (10) days after delivery of the deliverable. If Heptio receives a Rejection Notice during the Acceptance Period, Heptio will correct the non-conformities described in the Rejection Notice. Heptio will not charge for the correction provided the non-conformance was not due to changes to the deliverable caused by Customer or a Force Majeure event. When Heptio corrects the non-conformities, it will re-deliver the deliverable to Customer, and Customer will again accept or reject the deliverable in accordance with the process described in this Section 1.4. All notices pursuant to this Section 1.4 will be in writing (an email that receives a written, non-automated response from the intended recipient will suffice).
1.5 RIGHTS TO WORK PRODUCT . Any expression or result of Heptio’s Services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, deliverables, and other technical information (collectively ” Work Product“) created by Heptio in the course of performing the Services hereunder are the property of Heptio or third party licensors and are licensed to Customer, without further license fees, provided, however, to the extent such Work Product provided to Customer by Heptio contains Customer’s Confidential Information, Customer shall retain title to Customer’s Confidential Information. With the exception of Customer Confidential Information, Customer shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
2. TRAINING .
2.1 LOCATION AND TIMING . Training shall be provided at the location set forth in the Order Form (the “Location“). If no Location is identified in the Order Form, the training will be provided at a Location to be determined and confirmed in writing with the Customer. For onsite, virtual and e-learning training the Customer is responsible for testing all necessary facilities and systems prior to the scheduled training to enable Heptio to provide the training unless otherwise specified on the Order Form. Unless otherwise advised, Customer training participants who are on-site training should arrive at the classroom location no later than 15 minutes (and no later than 30 minutes to the virtual classroom) prior to the commencement of the training on the first training day . Where and when the length of a course is specified in a number of days, a “day” is not more than 7 hours of lecture with a one hour breakfast or lunch. Any onsite training will be agreed between the parties, but shall not include more than 7 hours of lecture on any single day. Training is only valid for the number of courses, dates and times (including the start and end date), Locations, delivery mechanisms (i.e., onsite, virtual or other), and number of students (participants) specified in the Order Form. On-site training dates must be confirmed three or more weeks in advance of the training date. All confirmed training registrations will be subject to the postponement policy as detailed in Section 6.2.
2.2 COURSE AVAILABILITY AND CONTENT . Training content will be substantially in line with the relevant training description set forth Heptio’s course catalogue, https://heptio.com/services/training/ . Heptio reserves the right to withdraw or re-schedule training at any time prior to the training start date without any liability to the Customer. In the event that Heptio is aware that there is a need to reschedule, then Heptio will make a reasonable effort to notify the Customer at least one week in advance.
2.3 TRAINING PARTICIPANTS . Customer may substitute training participants by giving 48 hour written notice to Heptio prior to the commencement of the scheduled training. Heptio reserves the right to exclude training participants from the class who are, in its reasonable opinion, causing disruption to such class. In the event of such exclusion no refund of any associated fees will be made. Heptio does not allow Customers to have additional participants “audit” its training courses. Customer agrees to pay for any and all participants that are in the classroom at the time of training, including last minute participants and drop-ins.
3. FREE AND OPEN SOURCE SOFTWARE . If the Services described in the Order Form require Customer to access, modify, enhance, prepare derivative works of, contribute to, integrate, combine, aggregate, distribute, or otherwise use any Free and Open Source Materials, Customer’s 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. For purposes of this Agreement, the term ” Free and Open Source Materials” means any software source code that is licensed to licensees on a free or open-source basis by Customer, Heptio, or one or more third parties and includes the FOSM identified on the Order Form. The parties 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. All rights not specifically granted herein are reserved.
4. FEES, EXPENSES, & PAYMENT . Unless otherwise set forth in the Order Form, for all Services performed under any Order Form(s) and/or any other request for Services that references this Agreement, Customer shall: (a) pay Heptio in accordance with each Order Form or at Heptio’s then-current standard rates, whichever is applicable; (b) reimburse Heptio for all reasonable and necessary travel and living expenses Heptio incurs performing such Services, provided that such expenses are incurred pursuant to an applicable Order Form or other request for Services by Customer; and (c) pay Heptio net thirty (30) days from the date of Heptio’s invoice. All payments pursuant to this Agreement are non-refundable except as provided in Section 8.4. Customer shall not withhold payments that are due and payable under this Agreement because of the status of work performed hereunder. Unless Customer provides Heptio with a valid tax exemption or direct pay certificate upon execution of this Agreement, Customer is responsible for all taxes, duties, and customs fees which may be assessed on the amounts paid for Services performed hereunder, excluding taxes based on Heptio’s income or payroll. Heptio reserves the right to invoice Customer the lessor of ten percent (10%) annual interest or the highest interest rate allowable under applicable laws for any outstanding, undisputed invoice not timely paid. Heptio invoices shall describe the following, as applicable: (i) the time period for which Services and expenses are billed; (ii) the Services to be or which were performed; (iii) the hourly rates charged, if applicable; (iv) travel and living expenses by type and amount; and (v) totals.
5. CONFIDENTIAL INFORMATION, PRIVACY, & DATA PROTECTION .
5.1 CONFIDENTIALITY .
(a) “Confidential Information” means any non-public information that relates to the actual or anticipated business, research, or development of the parties and any proprietary information, trade secrets, and know-how of the parties that is disclosed by one party to the other party, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information. As between the parties, Confidential Information is the sole property of the disclosing party, as applicable. Confidential Information does not include any information that the receiving party can show by documentary evidence: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) was publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) was already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) was obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (e) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
(b) Nondisclosure . Neither party will, during and after the Term, disclose any Confidential Information of the other party to any third party or use the Confidential Information for any purpose other than in connection with its obligations pursuant to this Agreement. Each party will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information of the other party, including, but not limited to, having each employee of the receiving party, if any, with access to any Confidential Information, execute a non-disclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. The parties acknowledge that each has received, and in the future will receive, from third parties confidential or proprietary information subject to a duty on such party’s part to maintain the confidentiality of the information and to use it only for certain limited purposes.
(c) Required and Permissible Disclosures . Except as otherwise required by applicable law, neither party will disclose any terms of this Agreement to any third party without the consent of the other party, other than to the financial or legal representatives of such party or to potential acquirers, merger partners, investors, and their financial or legal representatives solely in connection with the due diligence review of such party by such persons, and provided, in each instance, that such disclosures are made pursuant to confidentiality obligations at least as protective as those set forth herein. If the terms of this Agreement are required to be disclosed by applicable law, the party required to disclose the terms of this Agreement shall notify the other party, if permitted, and immediately take steps to ensure that only those terms required to be disclosed by applicable law are disclosed. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (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.
(d) Available Remedies . The parties acknowledges that any breach or threatened breach of a receiving party’s obligations in this Section 5.1 would cause irreparable harm to the disclosing party, and in addition to any other remedies at law or in equity that the receiving party may have, the disclosing party is entitled to seek equitable relief including injunctive relief, without the requirement of posting a bond or other security.
(e) Reservation of Rights . Heptio reserves all rights not expressly granted in this Agreement. No rights are granted by implication or estoppel.
5.2 PRIVACY, DATA PROTECTION AND INFORMATION SECURITY .
(c) Definitions . Data Protection Law means all applicable data protection and privacy laws, rules and regulations applicable to a party and binding on that party in the performance of its obligations under this Agreement, including, where applicable, EC Directive 2002/58/EC and Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). The terms “personal data,” “data processor,” “data subject,” “process and processing” and “data controller” shall be as defined in the applicable Data Protection Law.
(d) Party Roles . The parties agree that Customer shall at all times be the data controller and Heptio shall be the data processor with respect to the processing of Customer personal data in connection with the Services.
(e) Permitted Processing . Heptio agrees to the following restrictions with respect to its use and/or processing of personal data pursuant to this Agreement: Heptio shall only process any Customer personal data for the purposes of provision, maintenance, or support of the Services provided hereunder, including evolving and optimizing such to meet or exceed current level of effectiveness. In addition to the foregoing, Heptio may use any such Customer personal data which is effectively anonymized or aggregated data such that it does not reveal the specific identity of any individual, provided that Heptio shall not (i) re-identify any individual from any Customer personal data so anonymized or aggregated; and (ii) identify Customer in any way in its use of anonymized or aggregated personal data as described herein.
(f) Security . In accordance with applicable Data Protection Law, Heptio shall take all commercially reasonable measures, but in no event less than industry standard for a provider of similar products and services as Heptio, to protect the security and confidentiality of Customer personal data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties. Heptio will provide Customer with its security policy, upon request, that sets forth the technical specifications and the detailed measures taken to protect the security and confidentiality of customer personal data.
(g) Cross border or Onward Transfer of EEA or Swiss Personal Data . If the Services require the cross border transfer or onward transfer of EEA or Swiss personal data to the United States then the parties will include Heptio’s Data Processing Addendum to this Agreement which include the Standard Contractual Clauses for the controller-to-processor transfers, as set out in the Annex to Commission Decision 2010/87/EU.
6. TERM, TERMINATION .
6.1 TERM . This Agreement has an initial term commencing on the Effective Date and ending on the date that is one year thereafter (the ” Initial Term“). Following the Initial Term, this Agreement automatically will renew for successive one-year periods (each, a “Renewal Term” and, together with the Initial Term, the ” Term“), unless either party provides written notice of non-renewal at least 30 days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. In the event that this Agreement is not renewed at the end of the Initial Term or the then-current Renewal Term, as the case may be, this Agreement will automatically expire on the later of: (a) the end of the service term set forth in the current Order Form; or (b) if no Order Forms are in effect the last day of the calendar month in which the 30-day notice period ends.
6.2 POSTPONEMENT OF SERVICES . No penalty will be assessed if Customer postpones a scheduled training or consulting service (hereafter the “scheduled service”) at least twenty (20) business days or more before the start of the scheduled service. If Customer postpones a scheduled service at least ten (10) but less than twenty (20) business days before the start of the scheduled service, a penalty of 25% of the amount of the scheduled service may be assessed. If Customer postpones a scheduled service less than ten (10) business days before the start of the scheduled service, a penalty up to 100% of the scheduled service may be assessed. For the avoidance of doubt, Customer may not postpone HKS Support Services. In addition to other remedies available to Heptio, it may in its discretion suspend its performance under this Agreement effective immediately upon written notice in the event that Customer has not paid any amounts owed pursuant to this Agreement that are not the subject of a bona fide dispute on the part of Customer.
6.3 TERMINATION OF SERVICES .
(a) Termination for Cause . Either party may terminate the Agreement by written notice to the other party in the event of: (a) any material breach by the other party of any term or condition set forth in this Agreement, if such breach remains uncured 10 days after receipt by the defaulting party of a written notice of default from the non-defaulting party; or (b) the filing of, by, or against either party of a petition in bankruptcy, the making by either party of a general assignment for the benefit of creditors, the appointment of a receiver or trustee of either party’s assets, the application by either party under any insolvency law, the liquidation, in whole or in part, of either party’s business, or the equivalent of any of the foregoing proceedings or acts, however known or designated.
(b) Obligations upon Termination . Upon termination of this Agreement, Customer will promptly pay in full any amounts owed to Heptio pursuant to this Agreement that are not the subject of a bona fide dispute. No later than five (5) days after termination of this Agreement, the receiving party shall return to the disclosing party or, upon the disclosing party’s request, destroy all Confidential Information received and any materials containing the disclosing party’s Confidential Information, subject to the receiving party’s standard system archival policy, and deliver if requested a certification, in writing signed by an officer of the receiving party, that such Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued.
6.4 SURVIVABILITY . Sections 1.5, 5, 6.4, 8, 9, 10, and 16 shall survive termination of this Agreement. If the parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with this Agreement, those separate confidentiality terms shall remain in full force to the extent that they do not conflict with any terms contained herein.
7. REPRESENTATIONS AND WARRANTIES .
7.1 GENERAL . Each party warrants that it has the right and power to enter into this Agreement, and that an authorized representative has executed this Agreement.
7.2 HEPTIO REPRESENTS AND WARRANTS .
(a) Service Warranty . Heptio shall provide qualified service providers who perform in a professional and workmanlike manner in accordance with industry standards. To the extent the Services provided by Heptio are advisory; no specific result is assured or guaranteed.
(b) Warranty Disclaimer . OTHER THAN THE LIMITED WARRANTIES PROVIDED IN SECTION 7.2(a) HEPTIO DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES. HEPTIO SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, 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. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
7.3 CUSTOMER REPRESENTS AND WARRANTS . Customer represents and warrants that (a) it has the necessary rights to perform the Customer Requirements; (b) it will comply with all applicable laws, rules and regulations in the course of performing its obligations and exercising its rights under this Agreement; and (c) any Customer Confidential Information provided to Heptio or otherwise used by either party in connection with this Agreement will not infringe, misappropriate or otherwise violate any right of any third party.
8. INDEMNITY .
8.1 General . Each party (“Indemnifying party“) shall indemnify and hold the other party including their respective officers, agents, and personnel (“Indemnified party“) harmless against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified party is named as a result of (a) the negligent acts and omissions, or failure to act by the Indemnifying party, its employees or agents, while performing its obligations hereunder, which result in death, personal injury, or tangible property damage provided, however, that if there is also fault on the part of the Indemnified party or any entity or individual acting on Indemnified party’s behalf, the foregoing indemnification shall be on a comparative fault basis; or (b) failure to comply with the applicable laws, rules, and regulations including applicable Data Protection Laws.
8.2 Heptio’s Indemnification Obligations . Heptio will indemnify, defend or settle any action brought against Customer to the extent that it is based upon a claim that the Service(s) or deliverable(s) as provided under this Agreement and used within the scope of this Agreement directly infringes an United States patent or copyright, or misappropriates any trade secret, and will pay any damages that are finally awarded against Customer for such infringement or misappropriation. Heptio’s indemnification obligations hereunder shall not apply to: i) Customer’s misuse or modification of the deliverable; ii) Customer’s failure to use corrections or enhancements made available by Heptio to avoid such claims; iii) Customer’s use of the deliverables in combination with any product or information not provided by Heptio; iv) information, materials or specifications provided by or on behalf of Customer; or v) claims based on FOSM.
8.3 Indemnification Process . The Indemnified Party: (a) must promptly notify the Indemnifying Party in writing of the claim; (b) reasonably cooperate with the Indemnifying Party and provide the Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; and (c) grant the Indemnifying Party the sole control of the defense and all related settlement negotiations provided such defense or settlement does not require the Indemnified Party to admit fault, pay any fines or fees, or suffer other material disadvantage without the Indemnified Party’s prior written consent..
8.4 INJUNCTIVE RELIEF . In the event an infringement is determined or, if required by settlement, Heptio may: (a) substitute the deliverables with substantially compatible and functionally equivalent deliverables; or (b) modify the deliverables to avoid the infringement. If (a) and (b) fail, then Customer may return the deliverables and all related materials to Heptio, and Heptio shall refund to Customer a pro rata share of the affected deliverable determined from date of Customer’s acceptance of the deliverables.
8.5 THE PROVISIONS OF THIS SECTION 8 STATE THE EXCLUSIVE LIABILITY OF HEPTIO AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION OR INFRINGEMENT AND ARE IN LIEU OF ALL OTHER REMEDIES, LIABILITIES, AND OBLIGATIONS.
9. LIMITATION OF LIABILITY . HEPTIO’S MAXIMUM LIABILITY FOR ANY ACTION ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER IN TORT OR CONTRACT, SHALL BE LIMITED TO THE AMOUNT OF SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES FROM WHICH THE CLAIM AROSE. IN NO EVENT SHALL HEPTIO BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF HEPTIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
HEPTIO DOES NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CUSTOMER DATA, CONFIDENTIAL INFORMATION, AND PROPERTY. HEPTIO IS NOT RESPONSIBLE FOR SUCH INHERENT RISKS WHICH ARE OUTSIDE OF HEPTIO’S CONTROL. 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 HEPTIO TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. PUBLICITY . Customer agrees that Heptio may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer as its customer in promotional materials. Notwithstanding the foregoing, Heptio will not use Customer’s name or logo in a manner that suggests an endorsement of Heptio’s products and services by Customer or an affiliation between Customer and Heptio.
11. NO SOLICITATION . During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way Heptio’s employees (” Restricted Persons“) with a view to: (a) offer such Restricted Persons, employment; or (b) solicit services from them on their own account; or (c) offer to them the opportunity to perform services substantially similar to any offered hereunder.
12. NOTICE . All notices or other communications referenced under this Agreement shall be made in writing and sent to the address designated in the specific Order Form or as designated from time to time in writing by the parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail with read receipt requested.
13. WAIVER . No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.
14. 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 Heptio’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. Heptio shall have the right to assign this Agreement to any successor to its business or assets, 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. Any assignment in violation of the foregoing will be null and void.
15. FORCE MAJEURE . Except for Customer’s obligation to pay Heptio, neither party shall be liable for any failure to perform its obligations under this Agreement or any Order Form if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.
16. GENERAL . 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. 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 as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. This Agreement and the Order Form constitute the entire understanding between the Parties with respect to the subject matter herein and may only be amended or modified by a writing signed by a duly authorized representative of each party. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties regarding the subject matter contained herein. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify this Agreement regardless of any failure of a receiving party to object to these terms, provisions, or conditions. This Agreement may not be amended, except by a writing signed by both parties. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. An Order Form may be executed in counterparts, each of which will be deemed to be an original and together will constitute one document. An Order Form may also be executed by means of electronic signature and such execution and delivery will have the same force and effect of an original document with original signatures. By signing an Order Form Customer agrees that: (i) the Order Form will be governed by the terms and conditions of this Agreement and (ii) the appropriate fees will be timely paid.