TEHAMA

SERVICE DELIVERY PLATFORM AGREEMENT

FOR ORGANIZATIONS

This Agreement (the “Agreement”) contains the terms and conditions that apply to the provision of the Service Delivery Platform (the “Service” or the “Platform”, further defined below) by The Pythian Group Inc. (“Pythian”) to the Organization (defined below) that you represent (“You”). If you are accessing and using the Platform also as an individual user, the terms that apply to you as an individual User (defined below) are found at TERMS AND CONDITIONS FOR USERS (“User Terms”). You represent to Pythian that You are lawfully able to enter into contracts (e.g., you are not a minor) and that You have legal authority to bind Your Organization. By completing the registration process, submitting an order for the Platform or using the Platform You agree to all the terms of this Agreement, including the User Terms, if applicable, and the Acceptable Use Policy, the Privacy Policy and any other policies or terms incorporated by reference into this Agreement (“Policies”).

  1. THE SERVICE
    1. Subscription Process/Tehama Account Registration. You must register an account for the Organization at https://tehama.io/ (“Site”), with an email address, payment method information associated with it and any other information requested for the Organization on the Site (“Service Account”). Information about You provided in connection with the creation or administration of a Service Account is the “Account Information”, and includes without limitation, names, usernames, phone numbers, email addresses and billing information. Only one account per e-mail address can be created.

    2. Service Offering.
      1. The Service Described. The PSM is a business-to-business service and is a cloud-based technology that enables an Organization to receive IT services remotely from another Organization, through a secure and audited virtual private extension of the Connected-To Organization’s IT network (“Room”). Individual users (“Users”) may create an account on the Site at any time with a valid e-mail address (“User Account”). Any Users and Organizations you invite to use the Platform under your Service Account become “Members” of your Organization. Users participating in a Room are “Room Users”. Organizations and Room Users may submit software (including machine images), data, text, audio, video and images (“Content”) to the Platform. Pythian or any of its affiliates may make its own Content (“Tehama Content”) available to Organizations and Room Users in connection with the Platform. You will find detailed description of the Service model at TEHAMA - DESCRIPTION OF SERVICE MODEL.

      2. Subscription Plans. The Service is purchased as a subscription through an Order Form. “Subscription Plan” means a multi-tier price plan composed of an Organization plan, a Room plan, a desktop plan and a support plan. Pythian offers a variety of Subscription Plans that You can build based on Your own Organization’s requirements. For more information about Subscription Plans, visit Organization Plans.

      3. Service Level Agreement. The Service Level Agreement offered in connection with the paid version of the Service is located at https://app.tehama.io/policies/sla/. Pythian may discontinue or modify the Service Level Agreement offered in its sole discretion in accordance with section 9.7.

      4. Access Enablement. Pythian assumes that You will have existing Internet connectivity and appropriate bandwidth in order for You and Your Members to use the Platform. Pythian will not have any obligation to establish a point-to-point connection between Organizations participating in a Room, other than through the Platform. For more information refer to the Documentation.
    3. Scope of Application. This Agreement governs Your use of and access to the Platform only and it does not govern any contractual relationship that You may have with other Organizations who participate in a Room. Pythian will not be responsible for (a) any contract negotiation process required to conclude commercial terms between You and other Organizations (except if that other Organization is Pythian); (b) complying with any obligation acquired by You under any commercial terms You execute with other Organizations or any breach thereof, and (c) adjudicating or otherwise becoming involved in any dispute between You and Your Members, other Users or Organizations.

    4. Trial. If You as an Organization register a Service Account on the Site for a free trial, Pythian will make available the Platform to the Organization under the terms of this Agreement and the trial terms available at TEHAMA TRIAL. You are encouraged to review the Documentation, and information about Subscription Plans during the trial period, so that You become familiar with the features of the Service and Subscription Plans offered before purchasing a Subscription Plan. Notwithstanding any representations, warranties, exclusive remedies and disclaimers made in this Agreement, the trial version of the Platform is provided “as-is” without warranties of any kind.

    5. Violations by Users. You are responsible for (a) all activities performed by the Users within Your Organization, whether under Your Service Account or under another Organization’s Service Account, and (b) all activities that occur under Your Service Account by any of Your Members. You will ensure that all Users You are responsible for use the Platform in compliance with the terms of this Agreement, and You will notify Pythian immediately if You become aware of any violation of the terms of this Agreement by any such User. In addition, You agree that (i) if You are the Connected-To Organization, You will immediately terminate such User’s access to the Service or (ii) if You are not the Connected-To Organization, to notify the Connected-To Organization about the violation.
  2. PROPRIETARY RIGHTS AND LICENSE GRANT

    1. Intellectual Property Rights (“IP Rights”). IP Rights are all rights and interests in and to intangible, intellectual or industrial property that may be protected or that may arise under the laws of Canada, the United States or any other jurisdiction in the world, whether registered or not, including rights in and to writings and other copyrightable works of authorship (including software and compilations), databases, moral rights, patents, inventions, designs, trade secrets, formulae, data models, algorithms, methods, processes, know-how, Confidential Information, trademarks, service marks, logos, trade names, domain names, brand elements and other indicia of origin, and any and all goodwill, registrations and applications associated with any of the foregoing.

    2. Permission to Use the Platform (“License”). Pythian, its affiliates or third party licensors own and reserve all IP Rights in and to the Platform and the Tehama Content that Pythian makes available to You. Subject to the terms of this Agreement, Pythian grants You a limited, revocable, non-exclusive, non-transferrable License to access and use the Platform, which includes the installation of software agents on Your systems, and the Tehama Content only in accordance with this Agreement. For clarity, if You are the Room Owner but not the Connected-To Organization, the Connected-To Organization’ authorization is required, in addition to this License, for You and Your proposed Members to access the Room.

      During the term of this Agreement and after, You agree that You will not assert, or authorize, assist or encourage any third party to assert any claim that the Platform or any Tehama Content infringes any IP Rights.

      Except as provided in this section 2.2, You do not obtain any rights under this Agreement from Pythian or our third party licensors to the Platform or the Tehama Content, including any IP Rights.

      This Agreement is not intended to modify in any way the licensing or warranty (or any disclaimer thereof) of commercial software products separately purchased by You from Pythian or any third party, or any other transaction except as expressly provided herein.

    3. Restrictions. In accessing and using the Platform, You will not attempt to: (a) reverse engineer, decompile, disassemble or otherwise work around limitations in the Platform; (b) license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use or otherwise make the Platform or any Tehama Content commercially available to any third party other than in accordance with the terms of this Agreement; (c) access and/or use the Platform and the Tehama Content other than in accordance with the terms of this Agreement; (d) remove or modify any Pythian or third party’s copyright notices in the Platform or the Tehama Content; (e) access or use the Platform to build or support the building of products or services that are competitive to the Platform provided under this Agreement; and (f) copy, reproduce, distribute, republish, download, post, display or transmit in any form or by any means the Tehama Content or any other information relating to the Platform, except as permitted by this Agreement.

    4. Organization Content. As between You and Pythian, You retain all IP Rights in and to any Content that You or Your Room Users submit to the Platform (“Organization Content”). Except as provided in this section 2.4, Pythian does not obtain any rights under this Agreement from You with respect to Your Organization Content, including any IP Rights. You hereby consent to Pythian’s use of Your Organization Content to provide the Service to You and Your Room Users. You represent to Pythian that (a) You or Your licensors own all IP Rights in and to Your Organization Content; (b) You have all rights in Your Organization Content necessary to grant Pythian the rights contemplated by this Agreement; and (c) none of Your Organization Content or Your authorized Room Users’ use of Your Organization Content, the Platform and the Tehama Content will violate the Site Terms of Use or the Policies.

    5. Recordings. You acknowledge and agree that work and other activities performed in the Room may be monitored and audited and that Service-generated video recordings of work sessions, and records of events and other activities performed in a Room by Room Users (“Recordings”) may be made. The following rules apply with respect to Recordings:

      1. The Connected-To Organization and the Room Owner will have the right to (i) view and audit the work and other activities performed in the Room by any Room Users and (ii) download a copy of the Recordings for its internal business purposes only. Where the Connected-To Organization wishes to prevent other Organizations and their Users participating in the Room from exercising the rights described above, the Connected-To Organization must be also the Room Owner. Notwithstanding the foregoing, where Pythian acts as the Room Owner and/or provides services to the Connected-To Organization using the Platform, the Connected-To Organization hereby agrees that Pythian will have the right to exercise the rights described above.

      2. The Connected-To Organization will have the right to opt for storage services with respect to the Recordings, provided it has and maintains a valid Subscription Plan. Where the Room Owner is not the Connected-To Organization, it will require express consent from the Connected-To Organization and a valid Subscription Plan to opt for storage services with respect to Recordings capturing such Connected-To Organization’s Content.

      3. Pythian will have the right to retain a copy of the Recordings made in any Room and to use the Recordings for business purposes such as observing, analyzing and learning data trends and patterns, and developing new and/or improved products and services.

      4. Nothing in this section 2.5 is intended to waive or alter any confidentiality obligations that any party may have with respect to another party’s Content, including Content captured in the Recordings.
    6. Aggregated Data. In the provision of the Service, Pythian may collect usage data collected or generated by the Platform in connection with an Organization and its Room Users use of the Platform (“Aggregated Data”), including by capturing the Aggregated Data in the Recordings. Aggregated Data includes, without limitation, metadata, security and access roles, usage policies, permissions, usage statistics and analytics, but only in aggregate, anonymized form, in such way that it can in no way be linked specifically to such Organization and/or its Room Users. So long as Pythian does not disclose Your Confidential Information, Pythian will have the right to use any Aggregated Data for the purposes of refining, supplementing, testing or improving the Platform, including, without limitation, by performing heuristics, statistical analysis, and cohort analysis; for developing best practices and for training purposes. Pythian will have the right to retain the Aggregated Data after termination of this Agreement for the purposes identified above.

      Pythian’s collection, aggregation and anonymizing operations are performed with appropriate safeguards in place. If the Aggregated Data is information that identifies or could identify an individual, such individual may opt his/her information out of the Aggregated Data by notifying Pythian at https://app.tehama.io/support.

    7. Special Dependencies. The use of the Platform may require the use of other software and the Platform may not operate, or operate properly, without such software. The known software dependencies are set forth in the Documentation.

    8. Third Party Content. You acknowledge and agree that the Platform includes certain third party Content (including third party software) as referenced in the Documentation, which is distributed to You solely under the terms set forth in the respective license agreements associated with such third party Content and You acknowledge and agree that this Agreement in no way supplements or detracts from any term or condition contained therein. By accepting this Agreement, You are also accepting the terms of the license agreements that apply to such Third Party Content.
  3. FEES, PAYMENT TERMS AND TAXES

    1. Fees and Payment Terms. You will pay Pythian the fees identified in the Order Form (“Fees”) applicable to the Subscription Plan You select on the Site, and in accordance with the payment terms specified in the Order Form. Except as otherwise provided in the applicable Order Form, Fees must be paid in advance. Payment obligations are non-cancelable and, except as provided in this Agreement, are not refundable. Detailed information about payment terms is found at TEHAMA - FEES and PAYMENT TERMS.

    2. Taxes. All fees payable under this Agreement are exclusive of, and You are responsible for, all applicable taxes and duties, including sales and use taxes, goods and services taxes, value-added taxes (“VAT”), excise, business, service and similar transaction taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Pythian’s income (“Taxes”). Taxes will not be deducted from the payments to Pythian, except as required by law, in which case You shall increase the amount payable as necessary so that after making all required deductions and withholdings, Pythian receives and retains (free from any Taxes liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Your obligation under this section 3.2 will survive the termination or expiration of this Agreement.
  4. SECURITY AND DATA PRIVACY

    1. Security. Without limiting section 6 of this Agreement, Pythian will implement reasonable and appropriate measures designed to help You secure Your Organization Content against accidental or unlawful loss, access or disclosure. As of the Effective Date of this Agreement, Pythian uses Amazon Web Services as its platform hosting IT Services Provider (“Hosting Provider”). For information about the security provided by Hosting Provider, visit the Hosting Provider Security Centre page at https://aws.amazon.com/security/. Pythian will notify You if it changes its Hosting Provider or adds more hosting providers to its hosting infrastructure. You acknowledge that no data transmission over the Internet or data storage system can be guaranteed to be a 100% secure or reliable.

    2. Data Privacy. Pythian will store Your Organization Content in the regions made available at https://app.tehama.io/policies/datastorage and You hereby consent to the storage of Your Organization Content in, and the transfer of Your Organization Content into, the region that is made available or, if there are more than one region available, in the region that You choose. Pythian will not access Organization Content except as necessary to maintain or to provide the Service, or as necessary to comply with applicable law. Pythian will not disclose Organization Content to any government or third party, except as required to comply with applicable law, and in any such event, if permitted by applicable law, Pythian will notify You of any legal requirement or court order as to enable You to seek a protective order. Pythian will only use Account Information in accordance with Pythian’s Privacy Policy, and You hereby consent to such use. For the reasons set out in section 5.3, the Privacy Policy does not apply to the Organization Content.
  5. RESPONSIBILITIES OF THE ORGANIZATION

    1. Responsibilities with respect to Your Content. You acknowledge that You maintain control over Your Organization Content and for managing and controlling Your individual Content security requirements, including, without limitation, deciding what Organization Content You choose to store on the Platform and the region where it will stored, whether the Organization Content will be encrypted, the format and structure of the Organization Content and whether it is masked or anonymized, the Users who may have access to Organization Content and how such access can be revoked. You will be solely responsible for the development, content, operation, maintenance, and use of Your Organization Content, including, without limitation, the technical operation of Your Organization Content; compliance of Your Organization Content with the Policies and the law; any claims relating to Your Organization Content; and processing notices sent to You by any person claiming that Your Organization Content violates such person’s rights.

    2. Responsibilities with respect to Security and Backup. Pythian provides You with certain features and functionalities that You may elect to use. You are responsible for properly configuring and using the Platform and for using and enforcing controls available to You in connection with the Platform, and for taking such steps, in accordance with the functionalities offered to You by the Platform, that You deem adequate to maintain appropriate security, protection, and backup of Your Organization Content, which include controlling the management, in accordance with the control features available to You, of Your Users’ access to and use of the Platform. You are responsible for taking Your own steps to maintain appropriate security, protection and backup of Your Organization Content in Your own internal infrastructure, which may include the use of encryption technology to protect Your Organization Content from unauthorized access and for routine archiving Your Organization Content.

    3. Responsibilities with respect to Personal Information. You acknowledge that Pythian has no control over the type of Content You collect or use with the Platform or over the purpose for which You use such information. If Your Organization Content includes personally identifiable information, You are responsible for protecting such information and for complying with applicable law when processing, transferring to another Organization or otherwise using such information through Your use of the Platform. Pythian will not assume any liability or obligation with respect to personally identifiable information other than Account Information.
  6. INDEMNIFICATION.

    You will, at Your own cost and expense, defend Pythian, its affiliates, officers, directors, employees, subcontractors, agents, successors and permitted assignees (collectively the “Pythian Indemnitees”) from and against any third party claims, actions, demands and proceedings (“Claim(s)”) and will indemnify and hold harmless Pythian for all liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys’ fees), directly or indirectly resulting from or arising out of or relating to any Claim(s) concerning:
    1. the use of the Platform by You, the Users and the Members of Your Organization;
    2. a breach of this Agreement, including without limitation a breach of Your obligations under section 2, by You or Users within Your Organization or Members of Your Organization;
    3. a violation of applicable law by You, the Users and Members of Your Organization and Your Organization Content including, without limitation, data privacy Claims resulting from such breach or violation;
    4. a claim that Your Organization Content or the combination of Your Organization Content with other applications, content, materials or processes, infringes the IP Rights of any third party or misappropriates or in any way violates the rights of a third party;
    5. a dispute between You and another Organization or a Room User; and
    6. a response by Pythian to a third party subpoena or other compulsory order or process in connection with a Claim described above.
    Pythian will promptly notify You of any Claim, provided, however, that Pythian’s failure to promptly notify will not affect Your obligations under this section 6, except to the extent such failure materially impacts Your ability to defend the Claim. You may use counsel of Your choosing to assume the defense of any Claim, subject to Pythian Indemnitee(s)’ written consent, and You may settle the Claim as You consider appropriate, subject to prior written consent of Pythian Indemnitee(s). Pythian Indemnitee(s) may also undertake the defense and settlement of a Claim at any time.

  7. NO WARRANTIES.

    The Platform is provided “as is”. Pythian makes no warranty or representations of any kind, whether express, implied, statutory or otherwise, regarding the Platform or any Content, including any warranties that the Platform or any Content will be uninterrupted, error free or free of harmful components, or that any Content, including Your Organization Content, will be secure or not lost or damaged. Except to the extent prohibited by law, Pythian and its affiliates and licensors disclaim all warranties, including the implied warranties against infringement and the implied warranties of merchantability, fitness for a particular purpose, satisfactory quality or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade. Pythian does not make any warranty or accepts any liability with respect to any third party Content.

  8. LIMITATION OF LIABILITY.

    1. To the extent allowed by applicable law, except for a breach of Your obligations under section 2.2 and 2.3 and Your indemnification obligations under section 7 of this Agreement, neither party nor its affiliates and their respective personnel, will be liable for damages in the nature of expectation losses, indirect, special, reliance, incidental or consequential losses, or any loss of business profits, loss of data or other expected benefit or losses of any kind of any third party. Further, Pythian will not be liable for (a) any compensation, damages or reimbursement in connection with (i) Your inability to use the Platform as a result of termination of this Agreement for any reason or suspension of Your access to the Platform, (ii) as a result of discontinuation of the Platform, or (iii) without limiting any obligations under the Platform Level Agreement, any unanticipated or unscheduled downtime of all or portions of the Platform for any reason; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures or commitments made by You in connection with this Agreement or its use or access of the Platform; and (d) any unauthorized access to, alteration of, or deletion, destruction, damage, loss or failure to store any of Your Organization Content or other data.

    2. Notwithstanding any other provision contained herein or elsewhere, except for a breach of Your obligations under section 2.2 and 2.3 and Your indemnification obligations under section 7 of this Agreement, neither You nor Pythian, its Affiliates and their respective personnel’s total aggregate liability for any reason and upon any cause of action, whether in tort (including negligence), contract, or any other legal theory will at all times and in the aggregate be limited to the fees paid to Pythian by You for the use of the Platform during the 12 months preceding the incident giving rise to the claim. Multiple claims will not expand this limitation.

    3. Each party acknowledges that the other has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties set forth herein, and that the same form an essential basis of the bargain between the parties. This section 8 will be given full effect even if any remedy specified in this Agreement is deemed to have failed in its essential purpose.
  9. CONFIDENTIAL INFORMATION

    During the term of this Agreement a party to this Agreement (“Discloser”) may disclose to the other party (“Recipient”) nonpublic technical, financial or business information in connection with the Platform, which is either designated as confidential if disclosed in writing, or identified as confidential at the time of disclosure if disclosed orally, or which, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential (“Confidential Information”). In the case of Pythian, Confidential Information includes: (a) nonpublic information relating to the Platform, Pythian, its Affiliates, business partners, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that Pythian is obligated to keep confidential, including information about Hosting Provider’s technology, if any is disclosed with authorization of Hosting Provider; and (c) the nature, content and existence of any discussions between the You and Pythian. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Recipient at the time of receipt from Discloser; (iii) received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by Recipient without reference to Confidential Information of Discloser.

    Recipient agrees that it will hold the Discloser’s Confidential Information in confidence and that it will exercise reasonable care to protect the Discloser’ Confidential Information from unauthorized disclosure, which standard of care will in no event be less than the Recipient takes to protect its own Confidential Information of a like nature. Recipient may use Confidential Information only in connection with the Platform and may not disclose it to any third party, except to its employees, contractors, agents (“Representatives”) and Representatives of its Affiliates who have a need to know in connection with the purpose of this Agreement, and provided such Representatives are bound by obligations of confidentiality at least as restrictive as those contained in this Agreement. Recipient’s duty to hold Confidential Information in confidence expires five (5) years following termination of the Agreement. The expiration of the duty of confidentiality will not modify other restrictions on Recipient, including, for example, any restrictions under patent or copyright laws.

  10. SUSPENSION

    Pythian reserves the right to suspend Your access to and use of the Platform (including access and use by any of Your Members or Room Users) immediately upon notice to You if:
    1. Your or any Room User or Member’s use of the Platform (i) poses a risk to the Platform or any third party; (ii) may adversely impact the Platform or the Content of any other Tehama client; (iii) may subject Pythian, its affiliates or any third party to liability and/or (iv) may be fraudulent.

    2. You are, or any Member or Room User authorized by You is in breach of this Agreement, including if You are delinquent on Your payment obligations; or

    3. You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
    If Pythian suspends Your right to access or use the Platform:
    1. You remain responsible for all Fees and charges You have incurred through the date of suspension;
    2. You remain responsible for any applicable data storage Fees and charges for in-process tasks completed after the date of suspension; and
    3. Pythian will not erase any of Your Organization Content as a result of Your suspension, except as specified elsewhere in this Agreement.
    Pythian’s rights under this section 10 is in addition to our right to terminate this Agreement pursuant to Section 11.

  11. TERM AND TERMINATION.

    1. Termination for Convenience. You may terminate this Agreement for any or no reason, at any time by providing advance written notice or, if Pythian provides a closing mechanism, by closing Your Service Account. Pythian may terminate this Agreement for any reason by providing You 30 days advance notice.

    2. Termination for Cause. Either party may terminate this Agreement for cause upon 10 days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 10 day notice period.

    3. Termination by Pythian (applicable only to Organizations). Pythian may also terminate this Agreement upon prior written notice to You: (i) for cause, if any act or omission by You or any of Your Members or Room Users results in a suspension described in Section 10; (ii) if Pythian’s relationship with a third party partner who provides software or other technology we use to provide the Platform expires, terminates or requires Pythian to change the way we provide the software or other technology as part of the Platform; (iii) if we believe providing the Platform could create a substantial economic or technical burden or material security risk for Pythian; (iv) in order to comply with the law or requests of governmental entities; or (v) if Pythian determines use of the Platform by You or any of Your Members or Room Users or Pythian’s provision of the Platform to You or any of such Users has become impractical or unfeasible for any legal or regulatory reason.

    4. Automatic Termination. This Agreement, including the License granted under section 2.2, will automatically terminate if You or any of Your authorized Room Users or Members of Your Organization fail to comply with any term and condition of this Agreement.

    5. Consequences of Termination.

      Upon termination of this Agreement for any reason, all Your rights under this Agreement will terminate, and You remain responsible for the payment of all Fees and charges You have incurred up to and including the date of termination, and for any Fees and charges for additional tasks completed after the date of termination. In addition, You will immediately return or destroy, at Pythian’s discretion, any Tehama Content in Your possession. If You terminate the Agreement for convenience, Your Subscription Plan will terminate at the end of the then current billing cycle. No refunds or prorated Fees are offered for terminating the Agreement prior to the end of a billing cycle.

    6. Post-Termination Assistance Unless we terminate Your use of the Platform pursuant to sections 11.2 or 11.3, during 5 days following termination:

      1. Pythian will not erase any of Your Organization Content as a result of the termination;
      2. You may request assistance from the Concierge to retrieve Your Organization Content from the Platform only if You have paid any and all other amounts due; and
      3. You, if You are both the Connected-To Organization and the Room Owner, may download a copy of the Recordings for Your internal business purposes only, or purchase storage services under the applicable Subscription Plan.
      Any additional post-termination assistance from Pythian is subject to mutual agreement by You and Pythian.

  12. GENERAL PROVISIONS.

    1. High Risk Activities. You acknowledge that the Platform is not intended for configuring, supporting or otherwise servicing on-line control equipment in hazardous environments requiring fail-safe performance, such as, but not limited to, nuclear facilities, aircraft navigation, aircraft communications systems, air traffic control, direct life support machines or weapons systems, in which failure of the products could lead directly to death, personal injury, or severe physical or environmental damage.

    2. Force Majeure. If either party will be prevented from performing any portion of this Agreement by causes beyond its control, including denial-of service attacks, a failure by Hosting Provider, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.

    3. Jurisdiction & Dispute Resolution. This Agreement is made in and is governed by the laws of Ontario, Canada. All disputes arising out of or in connection with the Agreement will finally be settled under the laws of Ontario, Canada. The language to be used in any proceedings will be English and the place of trial will be Ottawa, Ontario. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Prior to the commencement of any litigation, upon receipt of a notice of dispute, the parties will make reasonable efforts to resolve the dispute by good faith negotiations. If such good faith negotiations between the parties’ initial Representatives do not resolve the dispute after 10 business days, it shall be escalated to senior executives for further good faith negotiations. If the senior executives are unable to resolve the dispute within 10 business days, then either party may initiate litigation.  Notwithstanding the foregoing or any other provision in this Agreement or elsewhere, either party may seek a preliminary injunction, attachment or other judicial relief, if such action is necessary to avoid irreparable harm, preserve the status quo or preserve and protect the subject matter of the dispute.  Despite such action, the parties will continue to participate in good faith dispute resolution negotiations as set out herein. If either Party initiates legal proceedings to enforce a term of the Agreement, the prevailing Party will be entitled to recover reasonable lawyers’ fees and disbursements and reasonable experts’ and other witness costs. You and Pythian agree that any dispute resolution proceedings will be conducted on an individual basis and not in a class, consolidated or representative action.

    4. Survival of Terms. The provisions of this Agreement which by their nature extend beyond the termination of the Agreement will survive, including, but not limited to, sections 2 (Proprietary Rights and License Grant, except for the license grant under section 2.1), 3 (Fees, Payment Terms and Taxes), 5 (Your Responsibilities), 7 (Indemnification), 7 (No Warranties), 8 (Limitation of Liability), 9 (Confidentiality), 11.4 (Consequences of Termination), 11.5 (Post-Termination Assistance) and 12 (General Provisions).

    5. Waiver. No waiver of any right or remedy on one occasion by either Party will be deemed a waiver of such right or remedy on any other occasion.

    6. Entire Agreement. This Agreement includes the Policies and sets forth the entire agreement and understanding between the Parties pertaining to the Service and merges all prior discussions between them on the same subject matter. Neither of the Parties will be bound by any conditions, definitions, warranties, understandings or representations with respect to the Service other than as expressly provided in this Agreement. This Agreement will not be supplemented or modified by any course of dealing or trade usage. Pythian will not be bound by any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it materially alters this Agreement) and which is submitted by You in any Order Form, receipt, acceptance confirmation, correspondence or other document, except for the terms expressly authorized in this Agreement to be included in an Order Form. This Agreement will prevail over any conflicting stipulations contained or referenced in any other document.

    7. Modification of this Agreement. We may modify this Agreement (including any Policies, available at https://app.tehama.io/policies/) at any time by posting a revised version on the Site, by asking You to click-thru the new version of the Agreement, or by otherwise notifying You in accordance with section 12.9. The modified terms will become effective upon posting or, if Pythian notifies You by email, as provided in the email message. By continuing using the Platform after the effective date of the modification of the Agreement, You agree to be bound by the modified terms. It is Your responsibility to regularly check for modifications to this Agreement.

    8. Assignment. You may not assign this Agreement, or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the prior written consent of Pythian. If consent is given, this Agreement will bind Your successors and assigns. Any assignment or transfer in violation of this section 12.8 will be void. Pythian may freely assign its rights, duties and obligations under this Agreement.

    9. Notice. Unless otherwise agreed to by the parties, all notices required under this Agreement will be deemed effective when received in writing by either:
      1. registered mail; or
      2. certified mail, return receipt requested
      In addition to the methods of notice above, Pythian may provide notice to You by (i) posting a notice on the Tehama Site; or (ii) sending an email to the email address associated with Your Service Account. You are responsible to keep Your email address current. Notice by this method will be deemed effective upon delivery, regardless of whether or not You received it.

    10. Publicity. You will not, without the prior written consent of Pythian, issue any press release or make any other public communication with respect to this Agreement or Your use of the Platform. You will not misrepresent or embellish the relationship between Pythian and You (including by expressing or implying that we support, sponsor, endorse or contribute to You or Your business endeavors), or express or imply any relationship or affiliation between Pythian and any other person or entity, except as expressly permitted under this Agreement.

    11. Severability. If any portion of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such portion which will be severed from this Agreement and will not affect or render invalid or unenforceable any other portions of this Agreement.

    12. Import and Export Compliance. In connection with this Agreement, each of Organization and Pythian will comply with all applicable import, re-import, export and re-export control laws and regulations, including the Canadian Export and Import Permits Act, the US Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the US Office of Foreign Assets Control. For clarity, You as an Organization are solely responsible for compliance related to the manner in which You choose to use the Platform, including the transfer and processing of Your Organization Content, the provision of Your Organization Content to Room Users and the region in which any of the foregoing occur.

    13. Independent Contractor. No partnership, joint venture, or agency relationship is created between Pythian and You by virtue of this Agreement.

    14. No Third Party Rights. This Agreement is made solely for the benefit of the parties to the Agreement and their respective successors and permitted assigns, and no other person or entity will have or acquire any right by virtue of this Agreement unless otherwise agreed to by the parties hereto.