TERMS AND CONDITIONS GOVERNING ACCESS TO AND USE OF SONOBUOY SCANNER™ SERVICES

Date of Last Revision: September 26, 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 ACCESSES OR USES OUR SONOBUOY SCANNER SERVICES (THE "SERVICES") BY REGISTERING TO USE SUCH SERVICES AT https://scanner.heptio.com OR A SUCCESSOR SITE (THE "SONOBUOY SCANNER SITE"). WE USE THE TERM "AGREEMENT" TO REFER TO THESE TERMS AND CONDITIONS, 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 CORPORATION OR OTHER LEGAL 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 YOURSELF, AS AN INDIVIDUAL, YOU HEREBY REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR THE LEGAL AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE) AND ARE ABLE TO FORM A LEGALLY BINDING CONTRACT. IF YOU ARE REGISTERING FOR, ACCESSING, OR USING THE SERVICES ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY THAT YOU REPRESENT AS AN EMPLOYEE OR OTHER AGENT OR REPRESENTATIVE, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH CORPORATION'S OR LEGAL ENTITY'S BEHALF.

  1. SERVICES
  2. You may purchase Services from us by registering at the Sonobuoy Scanner Site. We will use commercially reasonable efforts to perform the Services for you, subject to and in accordance with the terms and conditions set forth in this Agreement. The Services are only for your internal use, and you may not use the Services to supply any similar services to any third party. The Services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101.

  3. PAYMENTS; TAXES
  4. You agree to pay us the fees, if any, described on the Sonobuoy Scanner Site. 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. All fees are stated in, and will be paid by you in, US Dollars.

  5. YOUR OBLIGATIONS
  6. You will access and use the Services solely for the purpose, or purposes, for which we designed the Services and in compliance with all applicable state and federal laws, rules, regulations, and policies. You acknowledge that the Services comprise computer network-based services and that, in order to access and use the Services, you will need Internet connectivity, and you agree that, as between the Parties, you are solely responsible for obtaining and maintaining the hardware, software, and systems necessary for you to access the Services via the Internet. If, in order for us to effectively perform the Services, it is necessary or advisable for us to have, or have access to, certain requirements, data, documentation, programming, systems, networks, infrastructure, results, output, feedback, guidance, instructions, or other information, materials, or assistance that is in your care, custody, or control, you will make such information, materials, and assistance readily available to us in a timely manner at no charge. You are responsible for, and assume the risk of any problems resulting from, the content, accuracy, completeness, and consistency of such information, materials, and assistance, including being responsible for any fees, expenses, and other costs incurred or accrued during any delay, or delays, that result from a failure to supply such information, materials, or assistance. Further, you acknowledge that the timely supply of such information, materials, and assistance may be essential to our performance of the Services and that our ability to complete the Services may be dependent upon the same. If you fail to supply the information, materials, or assistance necessary for us to fulfill an obligation, we are discharged from any such obligation until you provide such information, materials, or assistance, as the case may be. We will use such information, materials, and assistance solely for the purpose of performing the Services. You will take all steps reasonably necessary to secure the usernames, passwords, or other credentials assigned to, or selected by, you that permit you to access and use any customer portals supplied to you as part of the Services and are solely responsible for the authorized or unauthorized use of such credentials by anyone (other than unauthorized use by us or our personnel). We are not responsible to you or any third party for unauthorized access to or use of data, information, or materials supplied by you to us by anyone gaining access through you, including, without limitation, your employees, agents, and other representatives; gaining access by using your usernames, passwords, or other credentials; or as a result of your failure to use reasonable security precautions (unless the unauthorized access results from intentional wrongdoing by us or our personnel). Further, you are responsible for keeping your contact information and other account information, settings, and permissions up to date with respect to such customer portals.

  7. OWNERSHIP; CONFIDENTIAL INFORMATION
  8. 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 or hold all right, title, and interest in and to the Confidential Information and any other proprietary information and materials that we develop, or have developed (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 use the Materials that we provide to you in connection with the Services solely for your own internal use; without modification, alteration, or translation; and without any disclosure, transfer, or redistribution to any third party. You will preserve any and all proprietary rights notices that are included in or accompany any Materials provided to you, 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.

  9. LIMITED WARRANTY; LIMITATIONS OF LIABILITY
  10. We warrant that the Services that we perform for you will be performed 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT WITH RESPECT TO YOUR CONFIDENTIALITY OBLIGATIONS IN SECTION 4 ABOVE, NEITHER PARTY WILL 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 THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OR LOSSES OCCURRING.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT WITH RESPECT TO A PARTY'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT AND YOUR CONFIDENTIALITY OBLIGATIONS IN SECTION 4 ABOVE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AND/OR PAYABLE BY YOU TO US PURSUANT TO THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY FIRST ARISES. WE DO NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY. WE ARE NOT RESPONSIBLE FOR SUCH INHERENT RISKS, WHICH ARE OUTSIDE OF OUR CONTROL. THE SERVICES, WHICH COMPRISE COMPUTER NETWORK-BASED SERVICES, MAY BE SUBJECT TO UNSCHEDULED INTERRUPTIONS. IN THE EVENT OF AN UNSCHEDULED INTERRUPTION, WE WILL TAKE ALL STEPS REASONABLY NECESSARY TO PROMPTLY REMEDY THE UNSCHEDULED INTERRUPTION, ONCE IT COMES TO OUR ATTENTION. OUR OBLIGATION TO REMEDY THE INTERRUPTION IN ACCORDANCE WITH THIS SECTION 5 WILL BE YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF AN INTERRUPTION, AND WE WILL NOT OTHERWISE BE LIABLE IN ANY MANNER FOR INTERRUPTIONS. 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.

  11. THIRD-PARTY PRODUCTS; FREE AND OPEN SOURCE SOFTWARE
  12. You acknowledge that, in order to benefit from the Services, you may need 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 obtain or maintain the Third-Party Products, as required, we may treat this Agreement 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.

  13. TERM AND TERMINATION
  14. Unless earlier terminated in accordance with this Section 7, this Agreement will remain in effect until both Parties' obligations are fully discharged. You are under no obligation to continue to use the Services. Likewise, we may cancel the Services at any time, provided that, at the time of cancelation, we have fulfilled our then-current obligations to you pursuant to this Agreement. Further, 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), and 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 or the cancelation of the Services, Section 2 and Sections 4-11 will survive.

  15. DATA AND CONTENT
  16. We will comply with our obligations under applicable law as regards the collection, storage, processing, transmission, and protection of any data, information, and content that we collect from you or that you provide to us in connection with the Services, including, if applicable, any personally identifiable information. As between the Parties, all data, information, and content provided by you to us or collected by us from you will remain your exclusive property, and you are solely responsible for ensuring that such data, information, and content, while in your care, custody, or control, are secure, protected, and backed up. You will create and maintain archival copies of any data, information, or content that you supply to us prior to providing the same to us or permitting us to collect such data, information, or content, and you are solely responsible for determining the suitability of the Services in light of the type of data, information, and content that you provide to us or permit us to collect. When you upload, submit, store, send, receive, or otherwise provide data, information, or content to or through the Services, you hereby grant us (and those we work with) a non-exclusive, perpetual, royalty-free, worldwide license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations, or other changes we make so that your data, information, or content work better with the Services), communicate, publish, publicly perform, publicly display, and distribute such data, information, or content solely for the purpose of operating, promoting, and improving the Services and to develop new products and services. At any time after you have provided data, information, or content to us or permitted us to collect such data, information, or content, we are free to delete and destroy any or all copies of the same that are then in our possession. Further, upon your request, we will delete and destroy all copies of such data, information, and content that are then in our possession. For the avoidance of doubt, the license granted by you to us pursuant to this Section 8 will continue even if you stop using the Services.

  17. EXPORT CONTROLS
  18. You acknowledge that we are subject to regulation by agencies of the United States, such as the U.S. Treasury Department and the U.S. Commerce Department, which prohibit export or diversion of certain products and/or technology to certain countries, persons, or entities. You will use the Services in compliance with such laws, regulations, and controls. More specifically, you agree that you will not grant administrative access to the customer portals or other support systems supplied as part of the Services to any person or legal entity if it knows, or has reason to know, that such person or legal entity is a national or resident of any country to which the United States has embargoed goods or that such person or legal entity is on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Person's List. Further, you represent and warrant to us that it is not a national or resident of any country to which the United States has embargoed goods nor is it on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Person's List.

  19. GENERAL
  20. 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. 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 additional terms, policies, or guidelines governing your access to and use of the Services at any time and in our sole discretion (by way of example only, to reflect changes in applicable law or changes to the Services); provided, that, in the event that we make such modifications, we will notify you of such modifications and allow you to review them prior to your continued use of the Services. However, your continued use of the Services, following notice of such modifications, will constitute your acceptance of this Agreement, as modified. If you do not agree to any such modifications, 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. Each Party agrees that service of process to the Party's mailing address described in Section 11 below (as may be updated from time-to-time by written notice to the other Party in accordance with Section 11 below) will constitute effective service within the State of Washington. 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.

  21. CONTACT; NOTICES
  22. If you have any questions for us regarding the Services, please send an e-mail to support@heptio.com. Formal notices to us shall be sufficient only if in writing and transmitted via personal delivery or delivered via a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to: Heptio, Inc., 901 Fifth Avenue, Suite 3310, Seattle, Washington 98164, USA, Attn: LEGAL DEPARTMENT, with a copy to legal@heptio.com. Notices to you may be made via posting to the Sonobuoy Scanner Site or via e-mail or regular mail to the e-mail address or mailing address provided to us by you, in our discretion. Legal notices and communications required or permitted under this Agreement will be deemed effectively delivered only upon delivery, if delivered via personal delivery, email, or a major commercial rapid delivery courier service, as confirmed by written delivery confirmation, or five days after deposit in the regular mail, postage prepaid. Without limitation, you agree that a printed version of this Agreement and of any notices given in electronic form are admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.