HORTONWORKS TRAINING MATERIALS LICENSE AGREEMENT
THIS HORTONWORKS TRAINING MATERIALS LICENSE AGREEMENT (“AGREEMENT�?) IS BETWEEN YOU, THE INDIVIDUAL PERSON OR ENTITY REGISTERING FOR OR PHYSICALLY ATTENDING, AS APPLICABLE, A HORTONWORKS TRAINING CLASS (“YOU�? OR “LICENSEE�?), AND HORTONWORKS, INC. (“HORTONWORKS�?), AND THIS AGREEMENT GOVERNS YOUR USE OF THE TRAINING MATERIALS (“TRAINING MATERIALS�?) PROVIDED TO YOU AT THE TIME OF THE HORTONWORKS TRAINING CLASS.
IF YOU ARE READING THIS AGREEMENT AT THE TIME YOU ARE REGISTERING (EITHER FOR YOURSELF OR ON BEHALF OF OTHERS) FOR ONE OR MORE HORTONWORKS TRAINING CLASSES, BY CLICKING THE “I ACCEPT�? BUTTON BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND IF APPLICABLE, YOU REPRESENT THAT YOU HAVE THE ABILITY TO BIND THE ENTITY WHOSE EMPLOYEES WILL BE ATTENDING THE HORTONWORKS TRAINING CLASS AT WHICH THE TRAINING MATERIALS WILL BE DISTRIBUTED. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK THE “I DO NOT ACCEPT�? BUTTON BELOW, AND YOU WILL NOT BE PERMITTED TO PROCEED WITH REGISTRATION FOR ANY HORTONWORKS TRAINING CLASSES.
IF YOU ARE READING THIS AGREEMENT AT THE TIME YOU ARE ATTENDING A HORTONWORKS TRAINING CLASS, BY USING THE TRAINING MATERIALS WHICH ARE PROVIDED TO YOU AND WHICH ARE ACCOMPANIED BY THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE TRAINING MATERIALS AND YOU MUST IMMEDIATELY RETURN THEM TO THE TRAINING CLASS INSTRUCTOR.
IN ADDITION TO THE TRAINING MATERIALS, AT THE TIME OF HORTONWORKS TRAINING CLASS YOU MAY BE PROVIDED WITH CERTAIN OPEN SOURCE SOFTWARE. SUCH SOFTWARE IS EXPRESSLY NOT SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, BUT IS SUBJECT TO AN APPLICABLE OPEN SOURCE LICENSE WITH WHICH YOU MUST COMPLY.
1. License Grant. Subject to the terms and conditions of this Agreement, Hortonworks agrees to grant, and does hereby grant to Licensee during the Term of this Agreement, a limited, non-exclusive, non-transferable right and license, without the right to grant or authorize sublicenses or to further distribute the Training Materials, to use the Training Materials solely for Licensee’s internal evaluation, noncommercial, and educational purposes (“Permitted Uses�?). The Training Materials may not be used for any purpose other than for Permitted Uses, including but not limited to productive or commercial use, and may not be used, directly or indirectly, to benefit any other person or entity other than Licensee. Licensee will be deemed to have accepted the license to use the Training Materials at the earlier of: (i) registering for the Training on the Hortonworks website, and (ii) the opening of the Training Materials by the Student.
2. License Restrictions. Licensee agrees not to: (a) copy or use the Training Materials in any manner except as expressly permitted in this Agreement; (b) transfer, sell, rent, lease, distribute, or sublicense the Training Materials to any third party; (c) use the Training Materials for providing services for any third party; (d) alter modify, enhance or prepare any derivative work from, the Training Materials; or (e) alter or remove any proprietary notices in the Training Materials.
3. Ownership and Confidential Information. Licensee 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. Licensee shall be entitled to keep and use all Materials provided by Hortonworks to Licensee, 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 Training Materials are provided. All Hortonworks trademarks, trade names, logos and notices present on the Materials shall be preserved and not defaced, modified or obliterated. Licensee shall not use any Hortonworks trademarks without Hortonworks’s express written authorization.
4. Licensee Feedback. Licensee may provide feedback regarding the Hortonworks Products including without limitation any functionality issues in the Hortonworks Products (collectively, “Feedback�?) via an online Hortonworks forum or other method. Licensee hereby grants to Hortonworks a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free, fully-paid, right and license to use and exploit in any manner and for any purpose all Feedback and related information.
5. Non-Solicitation. During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way any of Hortonworks’s employees or contract staff (“Restricted Persons�?) with a view to: (i) Offering such Restricted Persons, employment; or (ii) Soliciting services from them on their own account; or (iii) Encouraging them to provide their services to a third party rather than Hortonworks; or (iv) Offering to them the opportunity to perform services colourably similar to the services delivered hereunder. In the event of a breach of this Clause 5 resulting in Restricted Persons leaving the employment of Hortonworks and commencing employment (whether as an employee or contract staff) with the Customer then the Customer shall pay to Hortonworks by way of liquidated damages (which both parties hereby agree shall be a genuine pre-estimate of loss and not a penalty) a sum equal to 50% of the gross annual salary (including any benefits in kind, bonus payments, commissions and other emoluments) of the applicable Restricted Person as applied at the date he/she ceased to be employed by/contracted to Hortonworks.
During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way any of Providers’ employees or contract staff (“Restricted Persons�?) with a view to: (i) Offering such Restricted Persons, employment; or (ii) Soliciting services from them on their own account; or (iii) Encouraging them to provide their services to a third party rather than Providers’; or (iv) Offering to them the opportunity to perform services colourably similar to the services delivered hereunder. In the event of a breach of this Clause 5 resulting in Restricted Persons leaving the employment of Provider and commencing employment (whether as an employee or contract staff) with the Customer then the Customer shall pay to Provider by way of liquidated damages (which both parties hereby agree shall be a genuine pre-estimate of loss and not a penalty) a sum equal to 50% of the gross annual salary (including any benefits in kind, bonus payments, commissions and other emoluments) of the applicable Restricted Person as applied at the date he/she ceased to be employed by/contracted to Provider.
7. Limitation of Liability. IN NO EVENT WILL HORTONWORKS OR ITS LICENSORS BE LIABLE FOR ANY CLAIM BASED UPON A THIRD PARTY CLAIM, OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF HORTONWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HORTONWORKS’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED ONE HUNDRED DOLLARS (US $100). THE ALLOCATIONS OF LIABILITY IN THIS SECTION 7 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF HORTONWORKS FOR THE SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. Term and Termination. The term of this Agreement will begin on the earlier of the date the Licensee registers for a Training Class on the Hortonworks website or Licensee’s first use of the Training Materials and ends on the date this Agreement is terminated by either party. This Agreement may be terminated at any time by either party upon written notice to the other party. Upon termination or expiration of this Agreement, Licensee will return the Training Materials to Hortonworks and certify to Hortonworks in writing that all copies or partial copies thereof have been deleted from every computer library and storage device under Licensee’s control and are no longer in use by or on behalf of Licensee, and have been returned to Hortonworks. Termination will not affect any claim, liability or right arising prior to termination. All rights and obligations granted under Sections 2, 3, 5, 6, 7, 8, 9 and 10 of this Agreement will survive the expiration or termination of this Agreement.
9. Government Rights. The Training Materials licensed under this Agreement are Commercial Items, including commercial computer software, commercial computer software documentation, and Commercially Available-Off-the-Shelf (COTS), as those terms are defined in the Federal Acquisition Regulation (FAR) Subpart 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires these COTS Training Materials subject to Hortonwork’s customary commercial license, and the Government’s rights to use, modify, reproduce, release, perform, display, or disclose the COTS Training Materials is as set forth in this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR. If acquired by or on behalf of any agency within the Department of Defense (DOD), the U.S. Government acquires these COTS Training Materials subject to Hortonwork’s customary commercial license, and the Government’s rights to use, modify, reproduce, release, perform, display, or disclose the COTS Training Materials is as set forth in this Agreement, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement (DFARS) and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Hortonworks Training Materials or commercial software acquired under this Agreement.
10. General. 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 Training Materials 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 Licensee 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, except that if the Customer is an entity of the Federal government, this Agreement will be government by the federal laws of contract. 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, except that solely with respect to a Customer that is a Federal government entity, non-binding mediation is not mandatory, and if elected, may be at a location other than in New York, 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, except that with respect to a Customer that is a Federal government entity, in which case any litigation shall be in such court or forum and as required by federal law and regulation.. 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 or the address given by Licensee during online registration or the address given by the Licensee at the Training Class.
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