Version: November 27, 2012
This Training Services Agreement (this “Agreement”) is between Hortonworks, Inc., a Delaware corporation with its principal place of business located at 3460 West Bayshore Rd., Palo Alto, CA 94303 (“Hortonworks”), and the person or entity (“Customer”) which has purchased Hortonworks training services described herein (“Services”) by registering on www.hortonworks.com, by receiving the Hortonworks training materials or entering into an order form with Hortonworks (“Order Form”). No Order Form shall be deemed binding upon Hortonworks unless accepted by Hortonworks, as indicated by Hortonworks executing such Order Form.
Customer may purchase Services from Hortonworks by: (i) completing an Order Form that is governed by the terms and conditions of this Agreement, (ii) receiving the Hortonworks training materials or (iii) registering online. Services are only for Customer’s internal use and Customer may not use the Services to supply any consulting, support or training services to any third party. The Services shall be performed by qualified trainers (“Trainers”).
Customer agrees to pay Hortonworks the fees stated on the Order Form; or, if registering online or accepting the Hortonworks materials, then the fees set forth on the Hortonworks website. Customer will pay Hortonworks all sales, use, and excise taxes levied upon the delivery or use of the taxable Services described in this Agreement; unless Customer provides Hortonworks a valid state sales/use/excise tax exemption certificate or Direct Pay Permit. Customer will pay all value added or other tax or duty, and all government permit, withholding or license fees, and custom or similar fees, levied upon the delivery or use of Services described in this Agreement. If registering online, payment will be made at the time of registration. If accepting the Hortonworks Materials, then payment will be made at the time of acceptance according to the fee schedule on the website at the time of acceptance. If the parties enter into an Order Form, all invoices will be paid in U.S dollars and are due upon receipt and will be paid within thirty (30) days. Payments will be made without right of set-off or chargeback. If Customer does not pay each invoice within thirty (30) days of receipt, Hortonworks may charge interest at one percent (1%) per month on the unpaid balance.
Customer acknowledges that it may acquire proprietary information and materials about the business, products, services and programming techniques of Hortonworks and agrees that all such information and materials acquired are the confidential information of Hortonworks (“Confidential Information”). Customer agrees to protect and not to disclose or use the Confidential Information except as expressly permitted under the Agreement. Hortonworks training courses and training materials (“Materials”) and all worldwide intellectual property rights therein, as the same may be amended and/or extended, including the copyright, are wholly owned solely by Hortonworks, who shall retain all right, title and interest in and to all Materials. Customer shall be entitled to keep and use all Materials provided by Hortonworks to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Hortonworks. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archive purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials will be limited to use by the specific persons to whom the Services are provided. All Hortonworks trademarks, trade names, logos and notices present on the Materials shall be preserved and not defaced, modified or obliterated. Customer shall not use any Hortonworks trademarks without Hortonworks’s express written authorization.
4.1 Hortonworks warrants that it will perform the Services in a workmanlike manner consistent with generally accepted industry practice. Except for the foregoing LIMITED WARRANTY, 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.
4.2 IN NO EVENT WILL HORTONWORKS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFIT, LOSS OF DATA, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE. HORTONWORKS’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO HORTONWORKS UNDER THIS AGREEMENT FOR THAT PART OF THE SERVICES GIVING RISE TO LIABILITY.
4.3 The provisions of this Section 4 allocate risks under this Agreement between Customer and Hortonworks. Hortonworks’ fees for the Services reflect this allocation of risks and limitation of liability. The foregoing limitations, exclusions and disclaimers apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.
Customer acknowledges that in order for Hortonworks to provide the Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Hortonworks (“Third Party Products”). Hortonworks may provide Customer with links and instructions for obtaining Third Party Products but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. Hortonworks shall have no liability with respect to any Third Party Products.
Unless earlier terminated in accordance with this Section 6, 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 thirty (30) days of receiving written notice of such breach. Hortonworks may terminate this Agreement immediately upon written notice to Customer in the event that Customer fails to timely pay any amounts due hereunder. Upon the expiration or termination of this Agreement, Sections 2, 3, 4, 5, 6, 7 and 8 will survive. If either party wishes to cancel or reschedule any Services it must provide the other party with not less than ten (10) business days written notice thereof and Customer will pay the applicable fees set forth in an Order Form or as set forth on the Hortonworks website. Subject to the foregoing, Hortonworks shall work together with Customer to reschedule the Services.
Neither party may hire, or directly or indirectly solicit or employ, any employee or contractor of the other party for twelve (12) months after the termination of this Agreement; provided, however, that nothing contained herein will prevent a party from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. 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. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. 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 Hortonworks and Customer and do not create any right in favor of any third party. This Agreement will be governed by the laws of the State of New York, without reference to the principles of conflicts of law. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties will attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in New York County, New York. Any litigation related to this Agreement shall be brought in the state or federal courts located in New York County, New York, and only in those courts and each party irrevocably waives any objections to such venue. All notices must be in writing and will be effective three (3) days after the date sent to the address on the latest Order Form entered into between the parties, the address provided at registration or the address given by the Customer when attending a training session.