TEHAMA

SERVICE DELIVERY PLATFORM AGREEMENT

FOR INDIVIDUAL USERS

This Agreemaaaent for individual Users (the “User Terms”) 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 you (“User” or “You”) as an individual who has been invited by an Organization to use the Platform. You represent to Pythian that You are lawfully able to enter into contracts (e.g., You are not a minor). By completing the account registration process or using the Platform, you agree to these User Terms, including the Acceptable Use Policy, the Privacy Policy and any other policies or terms incorporated by reference into these User Terms (“Policies”).

  1. THE SERVICE

    1. Tehama Account Registration. You must register an account with an email address at https://tehama.io/ (“Site”) and any other information requested from You on the Site (“User Account”). As a User, You cannot purchase a Subscription Plan, but You can be invited by any Organization (whether its own or another Organization) to access and use the Platform under such Organization’s Service Account. Only one account per e-mail address can be created.

      Information about You provided in connection with the creation or administration of a User Account is the “Account Information”, and includes without limitation, name, username, phone numbers, and email address.

    2. Service Offering.
      1. The Service Described. The Platform 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”). You will find detailed description of the Service model at TEHAMA - DESCRIPTION OF SERVICE MODEL.

      2. Access Enablement. Pythian assumes that your Organization will have existing Internet connectivity and appropriate bandwidth in order for You 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. Violations by User. As a User, You are responsible for any activity performed under your User Account, regardless of whether the activities are undertaken by You or authorized by You.
  2. PROPRIETARY RIGHTS AND LICENSE GRANT

    1. Intellectually 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 these User Terms, 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 these User Terms.

      During the term of these User Terms 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 these User Terms from Pythian or our third party licensors to the Platform or the Tehama Content, including any IP Rights.

      These User Terms 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, neither You as an Organization nor any Room User will or will 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 these User Terms; (c) access and/or use the Platform and the Tehama Content other than in accordance with the terms of these User Terms; (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 these User Terms; 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 these User Terms.

    4. 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 You (“Recordings”) may be made. The Recordings will be viewed and may be downloaded by all Organizations participating in the Room. Pythian will have the right to retain a copy of the Recordings and use the Recordings for business purposes such as observing, analyzing and learning data trends and patterns, and developing new and/or improved product or services, without, for clarity, disclosing any of Your Personal Information that may be captured in the Recordings.

    5. Aggregated Data. In the provision of the Service, Pythian may collect usage data collected or generated by the Platform in connection with an Organizations 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 training and other purposes. Pythian will have the right to retain the Aggregated Data after termination of these User Terms 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.

    6. 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.

    7. 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 these User Terms in no way supplements or detracts from any term or condition contained therein. By accepting these User Terms, You are also accepting the terms of the license agreements that apply to such Third Party Content.
  3. SECURITY AND DATA PRIVACY

    1. Security. Pythian will implement reasonable and appropriate measures designed to help Your Organization secure the Organization Content, which may be submitted to the Platform by you on behalf of your Organization, against accidental or unlawful loss, access or disclosure. 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 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 3.3, the Privacy Policy does not apply to 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 on behalf of your Organization or over the purpose for which You use such information. If your Organization Content includes personally identifiable information, You Organization is 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.
  4. 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.

  5. LIMITATION OF LIABILITY.

    1. To the extent allowed by applicable law, except for your obligations under section 2 of these User Terms, neither You nor Pythian, 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 these User Terms 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 Service 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 these User Terms or your 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 your indemnification obligations under section 7 of these User Terms, neither You as individual User 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 One Hundred Dollars ($100). Multiple claims will not expand this limitation.

    3. Each party acknowledges that the other has set its prices and entered into these User Terms 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 these User Terms is deemed to have failed in its essential purpose.
  6. CONFIDENTIAL INFORMATION

    During the term of these User Terms Pythian may disclose to You 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”). 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 these User Terms; (ii) can be shown by documentation to have been known to the You at the time of receipt from Pythian; (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 You without reference to Confidential Information of Pythian.

    You agree that You will hold Pythian’s Confidential Information in confidence and that You will exercise reasonable care to protect the Confidential Information from unauthorized disclosure, which standard of care will in no event be less than the care You take to protect Your 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, Your duty to hold Confidential Information in confidence expires five (5) years following termination of the Agreement.

    You acknowledge that Pythian does not want to receive your confidential information. To the extent that you as a User disclose to Pythian Confidential Information on behalf of your Organization, you acknowledge and agree that Pythian’s obligations of confidentiality with respect to Confidential Information of your Organization are contemplated in the agreement between Pythian and Your Organization.

  7. SUSPENSION

    Pythian reserves the right to suspend your access to and use of the Platform as a Member of an Organization or as a Room User if your 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.

    Pythian’s right to suspend your or any of your Platform User’s right to access or use the Platform is in addition to our right to terminate these User Terms pursuant to Section 8.

  8. TERM AND TERMINATION.

    1. Termination for Convenience. You may terminate these User Terms for any or no reason, at any time by providing advance written notice or, if Pythian provides a closing mechanism, by closing your User Account. Pythian may terminate these User Terms for any reason by providing You 30 days advance notice.

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

    3. Automatic Termination. These User Terms, including the License granted under section 2.2, will automatically terminate if You or any of your authorized Room Users do not comply with any term and condition of these User Terms.

    4. Consequences of Termination.

      Upon termination of these User Terms for any reason, all your rights under these User Terms will terminate and You will not be able to access or use the Platform even if your Organization has an active Service Account with Pythian.
  9. 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. Jurisdiction & Dispute Resolution. These User Terms 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. 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.

    3. Survival of Terms. The provisions of these User Terms 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 (your Responsibilities), 4 (No Warranties), 5 (Limitation of Liability), 6 (Confidentiality), 8.4 (Consequences of Termination), and 9 (General Provisions).

    4. 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.

    5. Integration. These User Terms includes the Policies and sets forth the entire Agreement and understanding between the Parties pertaining to the subject matter 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 Platform other than as expressly provided in these User Terms.

    6. Modification of these User Terms. We may modify these User Terms (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 these User Terms.

    7. Assignment. You may not assign these User Terms, or delegate any or all of your rights or duties or obligations hereunder. Any assignment or transfer in violation of this section 12.8 will be void. Pythian may freely assign its rights, duties and obligations under these User Terms.

    8. Notice. You may provide notice to Pythian by sending an email to support@tehama.io. 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 User 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.

    9. Publicity. You will not, without the prior written consent of Pythian, make any public communication with respect to these User Terms 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 these User Terms.

    10. Severability. If any portion of these User Terms 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 these User Terms and will not affect or render invalid or unenforceable any other portions of these User Terms.

    11. Independent Contractor. No partnership, joint venture, or agency relationship is created between Pythian and You by virtue of these User Terms.

    12. No Third Party Rights. These User Terms 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 these User Terms unless otherwise agreed to by the parties hereto.