Terms of Services

 

Acceptable Use Policy

This Acceptable Use Policy ("AUP") is part of the terms of use (the “Website Terms of Use”) governing Your use of any website (a “Website”) controlled by Hewlett-Packard Company and its subsidiaries and affiliates (together, “HP”).  Any words that are capitalized in this AUP are defined in the Website Terms of Use unless HP provides You with a definition here.  This AUP describes ways that You are not authorized to use any Website, any Materials (as defined in the Website Terms of Use) that appear on those Websites and any services or products offered from any Website (the “Services”). 

Unless You have written permission from HP stating otherwise, You are not authorized to use any Website in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

  • Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a "Law");
  • Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
  • Violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any intellectual property or proprietary right of another;
  • Advocates or induces illegal activity;
  • Stalks, harasses, or harms anyone;
  • Impersonates any person or entity or otherwise misrepresents Your affiliation with a person or entity;
  • Modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software included in the Services (except to the extent software included in the Services is provided to Customer under a separate license that expressly permits the creation of derivative works);
  • Except as allowed by local law, reverse engineers, disassembles, or decompiles the Services or software included in the Services;
  • Interferes with or disrupts any Website or any Services or servers or networks connected to the Services;
  • Uses any high volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access any Website or any Services or any other accounts, computer systems, or networks connected to the Services (each a "System");
  • Attempts to gain unauthorized access to any portion of the Services or any System, whether through hacking, password mining, or any other means;
  • Violates the security or integrity of a System.

 

MONITORING AND ENFORCEMENT.

While not obligated to perform investigations, HP may:

  • Investigate violations of this AUP or misuse of any Website or Service;
  • Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;
  • Remove, disable access to, or modify any content or resource that HP believes violates this AUP or any Other Agreement HP has with You; or
  • Suspend or terminate provision of Services to You for uses that violate this AUP or any Other Agreement HP has with You.

 

It is up to HP to decide whether any User Submission of Your use of a Website or Service is prohibited. All User Submissions that are provided to HP or actions that are performed via Your account, whether provided or performed by Yourself or someone involved in Your business (such as Your employees, contractors or customers and end users) are Your sole responsibility. As part of the Website Terms of Use, You must also comply with the HPE Terms of Use stated here

 

HP may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. HP's reporting may include disclosing appropriate information that You may have provided. HP also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this AUP.

REPORT VIOLATIONS

You can report abuse of this AUP to support@saas.hp.com.

CONTACT US

If You have any questions or suggestions regarding this AUP, please contact HP at support@saas.hp.com.

Consent to Marketing Communications

HP occasionally sends personalized information (product/service updates, offers, or event info) via email. By agreeing to these terms, you agree to receive such communications.

Supporting Materials

Below are links to certain Supporting Materials (defined in the agreements below) that may be related to your trial or purchase:

HPE Agile Manager

HPE Application Lifecycle Management Service Description

HPE Application Performance Management Service Description

HP AppPulse Datasheet

HPE AppPulse Active  Service Description

HPE AppPulse Mobile Service Description

HP AppPulse Trace Datasheet

HP Application Lifecycle Management Octane Datasheet

HP Data Protector Datasheet

HP Fortify on Demand Datasheet

HP Mobile Center Datasheet

HPE Performance Center Service Description

HPE Project and Portfolio Management Service Description

HP Service Anywhere Datasheet

HPE StormRunner Load  Service Description

HPE Verity Information Archiving Datasheet

HP Vertica OnDemand Datasheet

HP SiteScope Datasheet

HPE Quality Center Enterprise Service Description

HPE Quality Center Team Edition Service Description

Agreement for Free Trials of On premise Software

If you start a free trial of any HP software that is to be installed on computers physically located on your site, the following terms apply:

This license agreement (the “Agreement”) states the terms between you ("You" or "Your") and Hewlett-Packard Company and its subsidiaries (“HP”) for the software that You download from HP’s website (the "Software"). By downloading, copying, or using the Software You agree to this Agreement. If You do not agree to be bound by the terms of this Agreement, do not click on "I Agree" below and do not download, install, copy, or use the Software.

1.      Terms. This Agreement includes supporting terms and information referenced by HP, which may be software license information, additional license authorizations, software specifications, published warranties, supplier terms, open source software licenses and similar content (“Supporting Material”). Additional license authorizations are available at: http://www.hp.com/go/SWLicensing.

2.      Authorization. If You agree to this Agreement on behalf of another person or entity, You warrant You have authority to do so. This Agreement will be enforceable against You and any entity for which You download, install or use the Product.

3.      Consumer Rights. If You obtained the Software as a consumer, nothing in this Agreement affects Your statutory rights.

4.      License Grant. As long as You comply with this Agreement, HP grants You a non-exclusive non-transferable license to use one copy of the version or release of the Software only for Your organization’s internal purposes; such use is subject to any specific software licensing information located in the Software product or its Supporting Material.

Your use is subject to the following restrictions, unless specifically allowed in Supporting Material:

You may not use software to provide services to third parties.

You may not distribute, resell, share or sublicense software to third parties.

You may not download and use patches, enhancements, bug fixes, or similar updates unless You have a license to the underlying software. Such license does not give You a right to receive such updates.

You may not copy the Software or make it available on a public or external distributed network.

You may not allow access on an Intranet unless it is restricted to authorized users.

You may copy the Software for archival purposes or when it is an essential step in authorized use so long as You retain any product identification, trademark, copyright or other notices in the Software.

You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of the Software. If You have a right to do so under law, You must first inform HP in writing about such modifications.

You may not disclose to any third party performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Software;

You may not use the Software in a manner inconsistent with the authorizations and restrictions for the specific Software found at http://www.hp.com/go/SWLicensing.

5.      Remote Monitoring. Some software may require keys or other technical protection measures and HP may monitor Your compliance with the Agreement, remotely or otherwise. If HP makes a license management program for recording and reporting license usage information, You will use such program no later than 180 days from the date it is made available.

6.      Ownership. No transfer of ownership of any intellectual property in the Software and any derivative works thereof will occur under this Agreement. All rights not granted are reserved.

7.      Disclaimer of Warranties. THE SOFTWARE AND ALL RELATED COMPONENTS ARE PROVIDED "AS IS." TO THE FULL EXTENT PERMITTED BY LAW, HP AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY, LEGAL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY OTHER WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

8.      Intellectual Property Rights Infringement. HP will defend and/or settle any claims against You that allege that HP-branded software as supplied under this Agreement infringes the intellectual property rights of a third party. HP will rely on Your prompt notification of the claim and cooperation with our defense. HP may modify the software so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we will refund to You the amount paid for the affected product in the first year or the depreciated value thereafter. HP is not responsible for claims resulting from any unauthorized use of the software.

9.      Limitation of Liability. HP’s liability to You under this Agreement is limited to the amount actually paid by You to HP for the relevant software, except for amounts in Section 9 (“Intellectual Property Rights Infringement”). Neither You nor HP will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by its negligence; acts of fraud; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law.

10.  Evaluation Software.

  1. If you are downloading the evaluation copy of the Software (“Evaluation Software”), Section 5 License Grant is modified by deleting the authorization for internal use and limiting the authorization for the sole purpose of internally testing and evaluating the Software and test results.
  2. The term of the Evaluation Software (“Term”) is specified in the chart below.
  3. Evaluation Software Specific Term and Use Restrictions. Your use of the Evaluation Software is restricted to the terms set forth in the product information.

11.  Termination. This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, Your rights under this Agreement terminate if You fail to comply with it. Immediately upon termination or expiration, You will destroy the software and documentation and any copies, or return to them to HP. You may keep one copy of software and documentation for archival purposes. We may ask You to certify in writing that You have complied with this section. Section 8 (“Disclaimer of Warranties”), Section 9 (“Intellectual Property Rights Infringement”), Section 10 (”Limitation of Liability), this termination provision, and Section 12 (“General”) each survive termination.

12.  Assignment. You may not assign this Agreement without prior written consent of HP, payment of transfer fees and compliance with HP’s software license transfer policies. Authorized assignments will terminate Your license to the software and You must deliver software and documentation and copies thereof to the assignee. You must first obtain the assignee’s agreement in writing to comply with this Agreement. You may only transfer firmware if You transfer associated hardware.

13.  U.S. Government. If the software is licensed to You for use in the performance of a U.S. Government prime contract or subcontract, You agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under HP’s standard commercial license.

14.  Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the products to any such country. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

15.  Audit. HP may audit You for compliance with the software license terms. Upon reasonable notice, HP may conduct an audit during normal business hours (with the audit cost at HP’s expense). If an audit reveals underpayments then You will promptly pay to HP such underpayments. If underpayments exceed five (5) percent, You will reimburse HP for the audit costs.

16.  Governing Law. This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflicts of law. You and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

17.  Force Majeure. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.

18.  Entire Agreement. This Agreement represents the entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If HP doesn’t exercise its rights under this Agreement, such delay is not a waiver of its rights.

19.   Australian Consumers. If you acquired the software as a consumer within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 (Cth) then despite any other provision of this Agreement, the terms at this URL apply: http://www.hp.com/go/SWLicensing.

Agreement for Purchase of On Premise Software and Related Services

The following is applicable to You, with respect to the purchase of on-premise software and related services:

These Terms of Sale (“Terms”) represent the agreement (“Agreement”) that governs the purchase of on-premise software and related services (together, the “HP Goods”) from Hewlett-Packard Company (“HP or Our” or “We”) by the customer who completes the purchase order (“You” and “Customer”). Unless You have another valid agreement applicable to Your purchase and/or HP specifies different or additional terms applicable to Your purchase, these Terms will govern Your purchase in its entirety. 

READ THESE TERMS CAREFULLY.

BY INDICATING YOUR CONSENT TO AGREE TO THESE TERMS, YOU ARE BOUND TO THESE TERMS WITH RESPECT TO YOUR PURCHASE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, AND WE DELIVER THE HP GOODS, DO NOT USE, DOWNLOAD, INSTALL, COPY, OR ACCESS THE HP GOODS, AND PROMPTLY RETURN THE PRODUCT WITH PROOF OF PURCHASE AND OBTAIN A REFUND OF THE AMOUNT YOU PAID, IF ANY. IF YOU DOWNLOADED ANY SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.

1.       Orders. “Order” means the accepted order including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Available to Customer in hard copy or by accessing a designated HP website, examples of Supporting Material include: product lists, hardware or software specifications, standard or negotiated service descriptions, data sheets and their supplements, and statements of work (SOWs), published warranties and service level agreements.

2.      Order Arrangements. Customer may place orders with HP through our website. Where appropriate, orders must specify a delivery date. If Customer extends the delivery date of an existing Order beyond ninety (90) days, then it will be considered a new order.

3.       Prices and Taxes. Prices will be as quoted as set out on our website at the time an order is submitted to HP. Prices are exclusive of taxes, duties, and fees (including installation, shipping, and handling) unless otherwise quoted.

4.       Invoices and Payment. Customer agrees to pay all invoiced amounts upon time of purchase. HP may suspend or cancel performance of open Orders for services if Customer fails to make payments when due.

5.      Delivery. HP will use all commercially reasonable efforts to deliver products in a timely manner. HP may elect to deliver software and related product/license information by electronic transmission or via download.

6.      Support Services. HP’s support services will be described in the applicable Supporting Material, which will cover the description of HP’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.

7.      Eligibility. HP’s service, support and warranty commitments do not cover claims resulting from:

a)      Improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material;

b)      Modifications or improper system maintenance or calibration not performed by HP or authorized by HP;

c)       Failure or functional limitations of any non-HP software or product impacting systems receiving HP support or service;

d)      Malware (e.g. virus, worm, etc.) not introduced by HP; or

e)      Abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HP’s control.

8.      Dependencies. HP’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services.

9.      Product Performance. All HP-branded hardware products are covered by HP’s limited warranty statements that are provided with the products or otherwise made available. Non-HP branded products receive warranty coverage as provided by the relevant third party supplier.

10.  Software Performance. HP warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery. HP warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for ninety (90) days. HP does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HP in Supporting Material.

11.  Services Performance. Services are performed using generally recognized commercial practices and standards. Customer agrees to provide prompt notice of any such service concerns and HP will re-perform any service that fails to meet this standard.

12.  Product Warranty Claims. When We receive a valid warranty claim for an HP software product, HP will either repair the relevant defect or replace the product. If HP is unable to complete the repair or replace the product within a reasonable time, Customer will be entitled to a full refund upon the prompt written confirmation by Customer that the relevant software product has been destroyed or permanently disabled.

13.  Remedies. This Agreement states all remedies for warranty claims. To the extent permitted by law, HP disclaims all other warranties.

14.  Intellectual Property Rights. No transfer of ownership of any intellectual property will occur under this Agreement. Customer grants HP a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for HP and its designees to perform the ordered services.

15.  Intellectual Property Rights Infringement. HP will defend and/or settle any claims against Customer that allege that an HP-branded product or service as supplied under this Agreement infringes the intellectual property rights of a third party. HP will rely on Customer’s prompt notification of the claim and cooperation with our defense. HP may modify the product or service so as to be non-infringing and materially equivalent, or We may procure a license. If these options are not available, We will refund to Customer the amount paid for the affected product in the first year or the depreciated value thereafter or, for support services, the balance of any pre-paid amount. HP is not responsible for claims resulting from any unauthorized use of the products or services.

16.  License Grant. HP grants Customer a non-exclusive license to use the version or release of the HP-branded software listed in the Order. Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material. For non-HP branded software, the third party’s license terms will govern its use.

17.   Updates. Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through an HP software support agreement. Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment. Updates are subject to the license terms in effect at the time that HP makes them available to Customer.

18.  License Restrictions. HP may monitor use/license restrictions remotely and, if HP makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software. Customer may use this archival copy without paying an additional license only when the primary system is inoperable. Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network. Licenses that allow use over Customer’s intranet require restricted access by authorized users only. Customer will also not modify, reverse engineer, disassemble decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HP with reasonably detailed information about those activities.

19.  License Term and Termination. Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, HP may terminate the license upon written notice. Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HP, except that Customer may retain one copy for archival purposes only.

20.  License Transfer. Customer may not sublicense, assign, transfer, rent or lease the software or software license except as permitted by HP. HP-branded software licenses are generally transferable subject to HP’s prior written authorization and payment to HP of any applicable fees. Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee. Transferee must agree in writing to be bound by the applicable software license terms. Customer may transfer firmware only upon transfer of associated hardware.

21.  License Compliance. HP may audit Customer compliance with the software license terms. Upon reasonable notice, HP may conduct an audit during normal business hours (with the auditor’s costs being at HP’s expense). If an audit reveals underpayments then Customer will pay to HP such underpayments. If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HP for the auditor costs.

22.  Personal Information. Each party shall comply with their respective obligations under applicable data protection legislation.  HP does not intend to have access to personally identifiable information (“PII”) of Customer in providing services. To the extent HP has access to Customer PII stored on a system or device of Customer, such access will likely be incidental and Customer will remain the data controller of Customer PII at all times. HP will use any PII to which it has access strictly for purposes of delivering the services ordered.

23.  US Federal Government Use. If software is licensed to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HP’s standard commercial license.

24.  Global Trade compliance. Products and services provided under these terms are for Customer’s internal use and not for further commercialization. If Customer exports, imports or otherwise transfers products and/or deliverables provided under these terms, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

25.  Limitation of Liability. HP’s liability to Customer under this Agreement is limited to the greater of $1,000,000 or the amount payable by Customer to HP for the relevant Order. Neither Customer nor HP will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; nor any liability which may not be excluded or limited by applicable law.

26.  Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

27.  Termination. Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

28.  General. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. The Agreement will be governed by the State of California, excluding rules as to choice and conflict of law, however, HP or its Affiliate may, bring suit for payment in the country where the Customer Affiliate that placed the Order is located. Customer and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

29.  Australian Consumers. If you acquired the software as a consumer within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 (Cth) then despite any other provision of this Agreement, the terms at this URL apply: http://www.hp.com/go/SWLicensing


European Union. The offerings of this website are not available to consumers in the EU. With respect to EU customers, the terms and conditions within this European Union section apply:

Germany.

Personal Information.  Customer and HP shall comply with their respective obligations under applicable data protection legislation as a controller and processor, respectively. Customer shall remain the controller of Customer Personal Data (as defined in the Exhibit) at all times. Exhibit “Data Protection Regulations” forms part of this Agreement and takes precedence over any conflicting terms herein or in any Supporting Material.

Security.  Information about security controls are provided at the hp.com website or can be otherwise provided at Customer’s request.

EXHIBIT - DATA PROTECTION REGULATIONS GERMANY (Version January 1, 2013)

To the extent HP has access to Customer´s personal data for performing Software-as-a-Service (“SaaS”) or Software Support (either hereinafter referenced as “Services”) the Parties agree to apply the terms described in subsection 1.1. HP shall apply those technical and organizational measures required by the exhibit to § 9 BDSG as set out in subsection 1.2 below.

 

1.1.        Provisions pursuant to Sections 9, 11 of the German Federal Data Protection Act (BDSG):

 

Underlying Contract. The terms of the agreement on commissioned data processing are based upon the Services contract concluded between the Parties, including the appendixes describing the services (data sheets) (the “Contract”). On the basis of the aforementioned Contract, HP will process the Customer's personal data. The Contract defines the scope, nature, and purpose of the collection, processing and/or use of personal data by HP, the type of personal data to be processed and the persons affected by the handling of personal data. The Customer may also provide additional written instructions. The duration of the commissioned data processing will be governed by the Contract.

 

Correcting, blocking, and deleting data. HP may only correct, delete or block data processed within the scope of the Contract in accordance with the instructions provided by the Customer. If a person asks HP for information about his/her data or requests that HP correct or delete his/her data, HP shall immediately forward the request to the Customer.

 

Obligations of HP. To ensure proper processing of personal data, HP will only use personnel who have entered into confidentiality agreements pursuant to Section 5 of the BDSG. If the security measures implemented by HP do not satisfy the requirements of the Customer, the Customer will notify HP immediately. Any errors or irregularities that are identified by the Customer when checking the results, and brought to HP's attention, will be immediately rectified by HP. HP will process personal data and other operating data belonging to the customer only in accordance with the instructions provided by the Customer. HP will not use the data transmitted for data processing for any other purpose, nor will HP retain this data for any longer than required by the Customer, save to the extent required by legal retention periods. Copies or duplicates must not be created without informing the Customer. If HP believes that an instruction from the Customer violates data protection legislation, HP must notify the Customer. This duty to notify will not include a comprehensive legal review. Subcontracts may only be awarded to subcontractors following written consent by the Customer. A Customer's consent may only be withheld if the Customer has a material reason for doing so. The Customer's consent will be deemed to have been given with respect to subcontractors named by HP prior to the conclusion of the Contract or which are regularly used by HP to provide standardized services. If a subcontractor is a company within HP's corporate group and is based in the European Union (EU) or the European Economic Area (EEA) or a safe third country, a subcontract may be awarded to the subcontractor without the prior written consent of the Customer. Irrespective of this, HP will always be obliged to exercise due caution when choosing subcontractors and to inform the Customer accordingly. Furthermore, HP must ensure that the data processing provisions agreed with the Customer also apply to all subcontracts awarded to subcontractors. If a subcontractor is operating outside the European Union (EU) or European Economic Area (EEA), an adequate level of data protection must be established pursuant to Sections 4b and 4c of the BDSG.  To this end, the Customer hereby authorizes HP to execute a controller to processor EU Model Contract (C (2010) 593) on its behalf to cover the transfer of any Customer personal data which originates from the EEA to any HP Affiliate supporting the Services and being located in a country which does not have a finding of adequacy pursuant to Article 25(6) of Directive 95.46/EC (the “Model Contract”).

 

HP will immediately inform the Customer of any incidents that must be reported pursuant to Section 42a of the BDSG, any serious operational malfunctions, and any suspected privacy violations or other irregularities that arise while processing the Customer's data. HP has appointed a competent and reliable data protection officer pursuant to Section 4f of the BDSG.

 

Control rights of the Customer. The Customer or a representative appointed by the Customer has a right of control with regard to proper processing of personal data and other operational data processed on behalf of the Customer. The rights of control will be exercised in consultation with HP. HP is obliged to assist the Customer in such controls and any controls of the competent authorities. These controls must be carried out in consideration of the business processes and HP's need for security and confidentiality. The control of standardized services will be performed by controlling the test documents professionally created and submitted by HP. HP is also obliged to apply the control rights of the Customer to the subcontractors of HP tasked with processing the Customer's data.

 

Deletion of data and return of data carriers. After completion of the contractual work or earlier if requested by the Customer - at the latest upon termination of the Contract - HP must return to the Customer all documents, processing results, usage results, and data sets that relate to the contractual relationship, or to destroy them in a manner compatible with data protection legislation following prior approval by the Customer. The same will apply to test material and rejected material. The manner in which data is deleted must be demonstrated upon request. HP must retain any documentation serving as proof of commissioned data processing and proper data processing beyond the end of the Contract in accordance with the respective retention periods. To ease the burden on HP, HP can choose to hand over such documentation when the Contract terminates.

 

1.2         Technical and Organizational Measures pursuant to Section 9 of the German Federal Data Protection Act (BDSG) and the Annex to this Act:

 

Overview of HP Technical and Organizational Measures

 

HP has defined its information security policy in order to make sure the appropriate controls are in place.

 

I.             PHYSICAL ACCESS CONTROLS

The HP Physical Security Policy includes the following controls for working areas and data centers:

 

•              The perimeter physical security including, but not limited to, access control, health and safety regulations, protection           against the damage of external and environmental threats (fire, flood, etc).

•              The physical access control is handled through the use of digital IDs, CCTV, finger prints, and more.

•              Access points such as delivery and loading areas and other points where unauthorized persons may enter the premises are              controlled.

•              Appropriate controls are taken to avoid theft or loss of company or personal equipment.

•              Equipment is protected from power failures and other disruptions caused by failures in supporting utilities using different method like generators, UPSs, and alternate power supplies in a way that minimize the effect of power failures.

•              Power and telecommunications cabling carrying data or supporting information services should be protected from interception or damage.

•              Classified information relies on paper or media is disposed in a secure manner.

•              All visitors are required to provide government issued ID, their visits are logged and they are escorted at all times and           required to wear clearly identifiable visitor credentials

•              Monitor all entry/exit points

•              Locked cabinets and cage areas

•              Alarm systems monitored 24x7x365

•              High sensitivity fire/smoke detection systems are implemented

•              UPS and backup power generators

•              At least two independent power supplies into the building.

•              Robust external network connectivity infrastructure

•              Physical locks required on portable computers within secured work areas

 

II.            ACCESS CONTROLS / ACCESS LIMITATION CONTROLS

Users are required to request access through either automated or manual methods. 

•              All grants to access require documentation indicating the grant of access.

•              Access to the Security team’s SharePoint site must be approved by an administrator on the SaaS Security team and logged.

•              All access requests related to HP tools must be documented and stored in a central repository. 

•              Utility programs capable of overriding system, object, network, virtual machine and application controls shall be restricted           based on a pre-defined credential set.

•              Access to systems with shared network infrastructure must be restricted to authorized personnel. Networks shared with       external entities shall have a documented plan detailing the compensating controls used to separate network traffic between organizations.

                                                 

HP policies and procedures for employees are intended to ensure that:

•              Prior to employment, the employees’ background is appropriately obtained

•              The employees understand and aware of the terms of their employment

•              The information security guidelines are clearly briefed to the employees

•              An information security awareness program exists and implemented

•              A formal disciplinary process for handling security breaches is established

•              Employment termination or role change is conducted in a controlled and secured manner

 

III.           INPUT CONTROLS

Access to log information must be restricted based on user roles and the principles of “need-to-know” and the usage of shared accounts is prohibited.The audit policies are reviewed annually to determine if there is a requirement to enhance audit information.                                                      

 

IV.           JOB CONTROLS

Access to materials and use of proprietary software shall be appropriately restricted following the rule of least privilege based on job function as per established user access policies and procedures.

 

VI.           AVAILABILITY CONTROLS

HP has developed a business continuity management process which includes:

•              A plan framework for improving HP’s resilience against the disruption of its ability to provide an expected service level to its           customers

•              A rehearsed method of restoring the ability to supply key products and services upon a disaster

 

VII.         DATA SEPARATION

Production and non-production environments shall be separated to prevent unauthorized access or changes to information assets.  Access for making changes to production environments is closed to developers except in special circumstances.  In those cases, developer access is granted temporarily and for specific tasks, monitored, and closed when the access is no longer needed.

 

Spain.

        Personal Information.  Customer and HP shall comply with their respective obligations under applicable data protection legislation as a controller and processor, respectively. Customer shall remain the controller of Customer Personal Data (as defined in the Exhibit) at all times. Exhibit “Data Protection Regulations” forms part of this Agreement and takes precedence over any conflicting terms herein or in any Supporting Material.

 

Security.  Information about HP’s security controls are provided at the hp.com website or can be otherwise provided at Customer’s request.

 

EXHIBIT - DATA PROTECTION REGULATIONS FOR SPAIN

Definitions

(i)     The terms “controller”, “data subject”, “processor”, “process, “processed” or “processing” and “personal data” used in this Addendum shall be as defined in the Spanish legislation (Law 15/1999, 13th December, of Personal Data Protection and the Royal Decree 1720/2007 of 21st December).

(ii)   “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HP processes in the course of providing SaaS or software support (either hereinafter called “Services”).

 

Data Processing

To the extent HP has access to Customer Personal Data for performing Services, in accordance with article 12 of the Law 15/1999, 13th December, of Personal Data Protection (“Ley Orgánica de Protección de Datos de Carácter Personal”), and the Royal Decree 1720/2007 of 21st December (“Real Decreto 1720/2007 de 21 de Diciembre por el que se aprueba el Reglamento de Desarrollo de la Ley Orgánica 15/1999”):

  • HP shall process such data only in accordance with the instructions of the Customer and solely for the purposes set forth in this Agreement.
  • HP shall not communicate the above referred data to any third party even for their preservation and shall destroy or return to the Customer, at customer choice, any personal data in his possession upon termination of this agreement.
  • HP shall maintain the secret and confidentiality of the personal data.

 

  1. Customer hereby appoints HP as a processor of Customer Personal Data. Customer and HP shall comply with all data protection laws to which they are subject, as a controller and processor respectively, and which are applicable to their information security, privacy and data protection obligations in connection with Customer Personal Data.
  2. HP shall only process Customer Personal Data as required to provide Services and in accordance with the Customer’s written instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Customer to HP under this Agreement) and to the extent that such instructions are not compatible with HP’s obligations under this Agreement they shall be implemented as agreed by the parties. Unless otherwise agreed, HP shall implement the security measures required in the section 1ª, Chapter III, Title VIII of the above mentioned Royal Decree.
  3. HP has implemented the HP technical and organisational measures to protect Customer Personal Data against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the hp.com website or can otherwise be provided on Customer’s request. These include:
  • Physical access controls
  • Access Controls
  • Access Limitation Controls
  • Input Controls
  • Job Controls
  • Availability Controls
  • Data Separation
  1. HP will ensure that all employees involved in the processing of Customer Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection of personal data.
  2. Where the Supporting Material identifies categories of Customer Personal Data or other Customer-provided data that are to be returned to Customer upon termination, HP will supply such data to Customer in the agreed format and will delete from HP’s own systems any remaining copies of such Customer Personal Data or other data, unless legislation applicable to it prevents it from doing so.
  3. HP will within five (5) business days of receipt, refer to Customer any queries from data subjects in connection with Customer Personal Data, for Customer to deal with.
  4. HP will on written request of Customer promptly amend or delete any Customer Personal Data to the extent that Customer is not able to amend or delete the data itself.
  5. Customer Personal Data will be transferred to HP’s parent company, Hewlett Packard Company in the United States of America, and onward to other affiliate and third party subcontractors located outside the EEA and Switzerland who support the Services, a list of which is available upon request.
  6. If and to the extent HPE is acting as a data processor or sub-processor with respect to Customer Personal Data pertaining to residents of the European Economic Area or Switzerland ("EEA+ Data Subjects"), the EU Standard Contractual Clauses (Processors) (short: “Model Contract”)  shall apply and supersede any conflicting terms of this Exhibit to the extent EEA+ Data Subjects are concerned. Between HPE and the Customer, this Exhibit shall prevail in case of any conflicts or inconsistencies with the Model Contract. Any losses suffered by data exporter or data importer (both as defined in the Model Contract) shall be treated as if they had been suffered by Customer or HPE respectively and shall in all cases be recovered by Customer or HPE subject to any limits on that party’s liability contained in this Agreement in section “limitation of liability”. Nothing in that section “limitation of liability “ shall limit the liability of either party in relation to a claim by a data subject under a Model Contract.
  7. When HP obtains formal approval for binding corporate rules for processors (BCR-P), the parties may agree to rely on the BCR-P for transfers of Customer Personal Data. The relevant information and additional contract terms will be provided to Customer on request.
  8. HP will ensure that any affiliate or third party subcontractor involved in processing Customer Personal Data enters into a written agreement with HP (which may be an inter-company agreement in the case of affiliates), which includes obligations substantially similar to those contained in this Addendum and appropriate to the nature of the processing involved.

Switzerland or other EEA countries not listed above.

Personal Information.  Customer and HP shall comply with their respective obligations under applicable data protection legislation as a controller and processor, respectively. Customer shall remain the controller of Customer Personal Data (as defined in the Exhibit) at all times. Exhibit “SaaS Data Protection Regulations” forms part of this Agreement and takes precedence over any conflicting terms herein or in any Supporting Material.

Security.  Information about SaaS’ security controls are provided at the hp.com website or can be otherwise provided at Customer’s request.

 

EXHIBIT -  DATA PROTECTION REGULATIONS

Definitions

(i)     The terms “controller”, “data subject”, “processor”, “process, “processed” or “processing” and “personal data” used in this Addendum shall be as defined in European Directive 95/46/EC.

(ii)   “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HP processes in the course of providing SaaS or software support (each hereinafter called “Services”).

Data Processing

  1. Customer hereby appoints HP as a processor of Customer Personal Data. Customer and HP shall comply with all data protection laws to which they are subject, as a controller and processor respectively, and which are applicable to their information security, privacy and data protection obligations in connection with Customer Personal Data.
  2. HP shall only process Customer Personal Data as required to provide Services and in accordance with the Customer’s written instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Customer to HP under this Agreement) and to the extent that such instructions are not compatible with HP’s obligations under this Agreement they shall be implemented as agreed by the parties.
  3. HP has implemented the HP technical and organisational measures to protect Customer Personal Data against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the hp.com website or can otherwise be provided on Customer’s request. These include:
  • Physical access controls
  • Access Controls
  • Access Limitation Controls
  • Input Controls
  • Job Controls
  • Availability Controls
  • Data Separation
  1. HP will ensure that all employees involved in the processing of Customer Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection of personal data.
  2. Where the Supporting Material identifies categories of Customer Personal Data or other Customer-provided data that are to be returned to Customer upon termination, HP will supply such data to Customer in the agreed format and will delete from HP’s own systems any remaining copies of such Customer Personal Data or other data, unless legislation applicable to it prevents it from doing so.
  3. HP will within five (5) business days of receipt, refer to Customer any queries from data subjects in connection with Customer Personal Data, for Customer to deal with.
  4. HP will on written request of Customer promptly amend or delete any Customer Personal Data to the extent that Customer is not able to amend or delete the data itself.
  5. Customer Personal Data will be transferred to HP’s parent company, Hewlett Packard Company in the United States of America, and onward to other affiliate and third party subcontractors located outside the EEA and Switzerland who support SaaS, a list of which is available upon request.
  6. If and to the extent HPE is acting as a data processor or sub-processor with respect to Customer Personal Data pertaining to residents of the European Economic Area or Switzerland ("EEA+ Data Subjects"), the EU Standard Contractual Clauses (Processors) (short: “Model Contract”)  shall apply and supersede any conflicting terms of this Exhibit to the extent EEA+ Data Subjects are concerned. Between HPE and the Customer, this Exhibit shall prevail in case of any conflicts or inconsistencies with the Model Contract. Any losses suffered by data exporter or data importer (both as defined in the Model Contract) shall be treated as if they had been suffered by Customer or HPE respectively and shall in all cases be recovered by Customer or HPE subject to any limits on that party’s liability contained in this Agreement in section “limitation of liability”. Nothing in that section “limitation of liability “ shall limit the liability of either party in relation to a claim by a data subject under a Model Contract.
  7. When HP obtains formal approval for binding corporate rules for processors (BCR-P), the parties may agree to rely on the BCR-P for transfers of Customer Personal Data. The relevant information and additional contract terms will be provided to Customer on request.

HP will ensure that any affiliate or third party subcontractor involved in processing Customer Personal Data enters into a written agreement with HP (which may be an inter-company agreement in the case of affiliates), which includes obligations substantially similar to those contained in this Addendum and appropriate to the nature of the processing involved.

Agreements for Purchase of SaaS or for SaaS Free Trial                       

THIS AGREEMENT (“AGREEMENT”) IS BETWEEN THE CUSTOMER WHO ORDERS SAAS (“CUSTOMER”) AND HEWLETT PACKARD ENTERPRISE (“HPE”). Customer’s use of and access to SaaS is governed by this Agreement and the terms of Customer’s Order. BY USING OR ACCESSING SAAS, OR BY CHOOSING THE “I ACCEPT” OPTION FOR THESE TERMS, YOU AGREE TO THE TERMS BELOW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OR ACCESS SAAS.

The following terms apply if you are ordering in a country outside of the European Union or Switzerland:

HPE CUSTOMER TERMS - SOFTWARE-AS-A-SERVICE

  1. Scope and Parties. These HPE Customer Terms for Software-as-a-Service (the “Agreement”) govern the purchase, access and use of software-as-a-service from the Hewlett Packard Enterprise entity receiving the Order (defined below) (“HPE”) by the Customer entity identified below (“Customer”). The terms of this Agreement become effective when HPE accepts Customer’s order, upon renewal of an order or upon Customer’s use of HPE SaaS (defined below) (“Effective Date”), and will remain in effect unless terminated pursuant to Section 19 (Termination).

 

  1. HPE Software-as-a-Service. “HPE Software-as-a-Service” or “HPE SaaS” mean the HPE branded online software solutions that HPE makes available for Customer use through a network connection, each as described in the applicable supporting material and other exhibits or attachments that are each made a part of this Agreement (collectively, “Supporting Material”). The terms for use of each HPE SaaS is stated in the Supporting Material. Supporting Material may include service descriptions, data sheets, statements of work and their applicable exhibits, addenda, and attachments which may be available to Customer in hard copy or by accessing an HPE website. In the event of a conflict, Supporting Material takes precedence over this Agreement.

 

  1. Orders. Customer may place orders for HPE SaaS through our website, customer-specific portal, or by letter, fax, or e-mail (each upon HPE’s acceptance, an “Order”). The term of each HPE SaaS subscription is stated in the applicable Order or Supporting Material and begins on the date that HPE SaaS is made available to Customer (“SaaS Order Term”).

 

  1. Access Rights. During the applicable SaaS Order Term, Customer may access and use the HPE SaaS in accordance with the applicable Supporting Material and this Agreement. Customer is responsible for complying with the terms of this Agreemment and the Supporting Material. Customer is responsible for any and all use of the HPE SaaS through Customer’s credentials or any account that Customer may establish. Customer agrees to maintain the confidentiality of Customer’s account, credentials, and any passwords necessary to use HPE SaaS. Should Customer believe that there has been unauthorized use of Customer’s account, credentials, or passwords, Customer must immediately notify HPE.

 

  1. Usage Limitations. HPE SaaS may be used only for Customer’s internal business purposes and not for commercialization. Customer will not: (i) exceed any usage limitations identified in the Supporting Material; (ii) except to the extent expressly permitted in Supporting Material, sell, resell, license, sublicense, lease, rent, or distribute HPE SaaS or include HPE SaaS as a service or outsourcing offering, or make any portion of HPE SaaS available for the benefit of any third party; (iii) copy or reproduce any portion, feature, function, or user interface of HPE SaaS; (iv) interfere with or disrupt the integrity or performance of the HPE SaaS; (v) use HPE SaaS to submit, send, or store Customer-provided SaaS Data that is obscene, threatening, libellous or otherwise unlawful or tortuous material, violates any third party’s privacy rights, or infringes upon or misappropriates intellectual property rights; (vi) use HPE SaaS to disrupt or cause harm to a third party’s system or environment; (vii) access HPE SaaS to build a competitive product or service; or (viii) reverse engineer HPE SaaS. Customer is responsible for complying with all terms of use for any software, content, service, or website it loads, creates, or accesses when using HPE SaaS.

 

  1. Payment terms.
  1. Prices and Taxes. Prices will be as quoted in writing by HPE or, in the absence of a written quote, as set out on our website, customer-specific portal, or HPE published list price at the time an order is submitted to HPE. Prices are exclusive of taxes, duties, and fees unless otherwise quoted. If a withholding tax is required by law, please contact the HPE order representative to discuss appropriate procedures.
  2. Invoices and Payment. Customer agrees to pay all invoiced amounts within thirty (30) days of HPE’s invoice date. HPE may suspend or cancel performance of open Orders or services if Customer fails to make payments when due.

 

  1. Customer-provided SaaS Data. Customer is solely responsible for the data, text, audio, video, images, software, and other content (“Customer-provided SaaS Data”) input into an HPE system or environment during Customer’s access or use of HPE SaaS. As between HPE and Customer, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer-provided SaaS Data. Customer hereby provides to HPE all necessary rights to Customer-provided SaaS Data to enable HPE to provide the HPE SaaS. HPE will use Customer-provided SaaS Data only as necessary to provide HPE SaaS, technical support, or as otherwise required by law.

 

  1. Personal Data.
  1. If, in the course of providing HPE SaaS, HPE agrees in writing to process Customer Personal Data, HPE shall process such data only as permitted under this Agreement and in compliance with data protection legislation to which HPE is subject as a service provider and processor of Customer Personal Data.   
  2.  “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HPE processes in the course of providing HPE SaaS. The terms “controller”, “processor”, “process”, “processed”, “processing”, and “personal data” used in this Agreement shall be as defined by EU Directive 95/46/EC, unless otherwise defined by applicable data protection legislation.

 

  1. Data Security. HPE implements technical and organizational measures to protect Customer-provided SaaS Data. The Supporting Material for each HPE SaaS describes the measures implemented for such HPE SaaS.

 

  1. HPE SaaS Performance and Operations. HPE’s ability to deliver HPE SaaS will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the HPE SaaS.

 

  1. HPE SaaS Operations. So long as during the SaaS Order Term, HPE does not materialy degrade the functionality, as described in Supporting Material, of the HPE SaaS: (i) HPE may modify the systems and environment used to provide HPE SaaS; and (ii) HPE reserves the right to make any changes to HPE SaaS that it deems necessary or useful to maintain or enhance the quality or delivery of HPE’s services to its customers, the competitive strength of or market for HPE’s services, or HPE SaaS’ cost efficiency or performance. HPE may use global resources, such as HPE affiliates or third parties in worldwide locations to provide HPE SaaS and perform its obligations.

 

  1. License Grant to Software in connection with HPE SaaS. To the extent that HPE provides software in connection with HPE SaaS, HPE grants Customer a non-exclusive and non-transferable license to use the version or release of the HPE-branded software listed in the Order or the applicable Supporting Material (the “Licensed Software”) during the SaaS Order Term. Unless otherwise stated in writing, Customer may only use the Licensed Software for internal purposes and not for further commercialization. Customer may make a copy or adaptation of the Licensed Software only for archival purposes or when it is an essential step in the authorized use of the Licensed Software. Customer agrees that it will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of any Licensed Software unless permitted by statute, in which case Customer will provide HPE with reasonably detailed information about those activities. For non-HPE branded software, the third party’s license terms will govern its use. HPE may monitor and audit Customer use of the Licensed Software and compliance with any associated license terms and, if HPE makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may not sublicense, assign, transfer, rent, or lease the Licensed Software except as permitted in writing by HPE.

 

  1. Warranty: HPE WILL PERFORM HPE SAAS BY QUALIFIED PERSONNEL AND IN A WORKMANLIKE MANNER CONSISTENT WITH THE SUPPORTING MATERIAL. TO THE EXTENT PERMITTED BY LAW, HPE DISCLAIMS ALL OTHER WARRANTIES. HPE DOES NOT WARRANT THAT HPE SAAS WILL BE UNINTERRUPTED OR ERROR FREE. IF HPE PROVIDES CUSTOMER WITH A FREE-OF-CHARGE SAAS ORDER TERM, INCLUDING BUT NOT LIMITED TO HPE SAAS PROVIDED ON AN EVALUATION OR “FREEMIUM” BASIS, HPE SAAS IS PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW, HPE DISCLAIMS ALL WARRANTIES AND LIABILITY.

 

  1. Intellectual Property Rights. No transfer of ownership of any intellectual property will occur under this Agreement. Customer grants HPE a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Customer-provided SaaS Data, that is necessary for HPE and its designees to perform the HPE SaaS.

 

  1. Intellectual Property Rights Infringement. HPE will defend and/or settle any claims against Customer that allege that an HPE-branded product or service as supplied under this Agreement infringes the intellectual property rights of a third party. HPE will rely on Customer’s prompt notification of the claim and cooperation with our defense. HPE may modify the product or service so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we will refund to Customer the balance of any pre-paid amount for the affected HPE SaaS. HPE is not responsible for claims resulting from Customer-provided SaaS Data or from any unauthorized use of the products or services. This section shall also apply to Licensed Software identified as such in the relevant Supporting Material except that HPE is not responsible for claims resulting from Customer-provided SaaS Data, customized configurations or designs (i) performed or provided by Customer or (ii) performed at Customer’s direction. Customer will defend or indemnify HPE from and against third party claims arising from Customer-provided Saas Data or customized configuration or designs (i) performed or provided by Customer or (ii) performed at Customer’s direction.

 

  1. Limitation of Liability. HPE’s liability to Customer under this Agreement is limited to the greater of $1,000,000 or the amount payable by Customer to HPE for the relevant HPE SaaS Order that is the subject of the claim for the twelve (12) month period immediately preceding the act or omission giving rise to the claim.  This limit applies collectively to HPE, its employees, subsidiaries, contractors, and suppliers. Neither Customer nor HPE will be liable for lost revenues or profits, downtime costs, or indirect, special, or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence, acts of fraud, nor any liability which may not be excluded or limited by applicable law. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations. If HPE provides customer with a free-of-charge SaaS Order Term, including but not limited to HPE SaaS provided on an evaluation or “freemium” basis, HPE SaaS is provided “as is” and to the extent permitted by law, HPE shall not be responsible for any loss or damage to Customer, its customers, or any third parties caused by the HPE SaaS or Licensed Software that makes available for Customer.

 

  1. Suspension. HPE may suspend Customer’s access and use rights to HPE SaaS where Customer fails to make payments when due, Customer breaches Sections 4, 5, 6, 7, or 12 of this Agreement or Customer’s use of HPE SaaS is in violation of law. Customer remains responsible for applicable fees through date of suspension including usage and data storage fees, Customer will not be entitled to service credits during any suspension period.

 

  1. Termination. Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership, or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. HPE may terminate this Agreement where Customer’s access and use rights are suspended pursuant to Section 17 or to comply with applicable laws or regulations. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

 

  1. Effect of Expiration or Termination. Except for termination for cause, termination of this Agreement shall not entitle Customer to any refund, and payment obligations are non-cancelable. Upon expiration or termination of a SaaS Order Term, except as otherwise provided in the Supporting Material:
  1. HPE may disable all Customer access to the applicable HPE SaaS, and Customer shall promptly return to HPE (or at HPE’s request destroy) any Licensed Software provided with HPE SaaS; and
  2. HPE may make available certain data in the format generally provided by HPE, subject to the terms of the applicable Supporting Material.

 

  1. General. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to this Agreement will be made only through a written amendment signed by both parties. The Agreement will be governed by the laws of the country of HPE or the HPE affiliate accepting the Order and the courts of that locale will have jurisdiction; however, HPE or its affiliate may bring suit for payment in the country where the Customer affiliate that placed the Order is located. Customer and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Claims arising or raised in the United States will be governed by the laws of the state of California, excluding rules as to choice and conflicts of law.

Software Product License / Software Support / Software Professional Services Appendix - SOFTWARE-AS-A-SERVICE

 
  1. Software Product Licenses, Support, and/or Professional Services.  To the extent that Customer’s Order for HPE SaaS includes Customer’s purchase of software product licenses, software product support, and/or professional services, this Appendix applies and supplements the terms applicable between HPE and Customer for SaaS.  In the event of a conflict between this Appendix and the Agreement, the terms and conditions of this Appendix will govern for purpose of Customer’s Order for software product licenses, software product support, and/or professional services. 

 

  1. Definitions. Capitalized terms used but not defined in this Appendix are as defined in the Agreement.  “Supporting Material” may also include (as examples) software product lists and software specifications, standard or negotiated service descriptions, data sheets and their supplements, and statements of work (SOWs), published warranties and service level agreements, and may be available to Customer in hard copy or by accessing a designated HPE website.
  1. Order Arrangements; Delivery.  Where appropriate, Orders must specify a delivery date.  If Customer extends the delivery date of an existing Order beyond ninety (90) days, then it will be considered a new order.  HPE will use all commercially reasonable efforts to deliver software products in a timely manner.  HPE may elect to deliver software and related software product/license information by electronic transmission or download.

 

  1. Support Services; Professional Services; Services Performance.  HPE’s support services will be described in the applicable Supporting Material, which will cover the description of HPE’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.  HPE will deliver any ordered professional services as described in the applicable Supporting Material.  If deliverables are created by HPE specifically for Customer and identified as such in Supporting Material, HPE hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally.  HPE will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services.  The acceptance process for professional services will apply only to deliverables specified in professional services Supporting Material, and shall not apply to other products or services to be provided by HPE.  Services are performed using generally recognized commercial practices and standards.  Customer agrees to provide prompt notice of any such service concerns and HPE will re-perform any service that fails to meet this standard.  If Supporting Material for professional services defines specific deliverables, HPE warrants those deliverables will conform materially to their written specifications for 30 days following delivery.  If Customer notifies HPE of such a non-conformity during the 30 day period, HPE will promptly remedy the impacted deliverables or refund to Customer the fees paid for those deliverables and Customer will return those deliverables to HPE.

 

  1. Software Performance.  HPE warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery.  HPE warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for ninety (90) days.  HPE does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HPE in Supporting Material.

 

  1. Product Warranty Claims; Remedies.  When we receive a valid warranty claim for an HPE software product, HPE will either repair the relevant defect or replace the software product.  If HPE is unable to complete the repair or replace the software product within a reasonable time, Customer will be entitled to a full refund upon the prompt written confirmation by Customer that the relevant software product has been destroyed or permanently disabled.  HPE will pay for shipment of repaired or replaced software products to Customer.  This Appendix states all remedies for warranty claims.  To the extent permitted by law, HPE disclaims all other warranties.

 

  1. Eligibility.   HPE’s service,support and warranty commitments do not cover claims resulting from: (1) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material; (2) modifications or improper system maintenance or calibration not performed by HPE or authorized by HPE; (3) failure or functional limitations of any non-HPE software or product impacting systems receiving HPE support or service; (4) malware (e.g. virus, worm, etc.) not introduced by HPE; or (5) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HPE’s control.

 

  1. License Grant.  HPE grants Customer a non-exclusive license to use the version or release of the HPE-branded software license listed in the Order.  Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material.  For non-HPE branded software, the third party’s license terms will govern its use.

 

  1. Updates.  Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through an HPE software support agreement.  Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment.  Updates are subject to the license terms in effect at the time that HPE makes them available to Customer.

 

  1. License Restrictions.  HPE may monitor use/license restrictions remotely and, if HPE makes a license management program available, Customer agrees to install and use it within a reasonable period of time.  Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software.  Customer may use this archival copy without paying an additional license only when the primary system is inoperable.  Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network.  Licenses that allow use over Customer’s intranet require restricted access by authorized users only.  Customer will also not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HPE with reasonably detailed information about those activities.  

 

  1. License Term and Termination.  Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, HPE may terminate the license upon written notice.  Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HPE, except that Customer may retain one copy for archival purposes only.

 

  1. License Transfer.  Customer may not sublicense, assign, transfer, rent or lease the software or software license except as permitted by HPE.  HPE-branded software licenses are generally transferable subject to HPE’s prior written authorization and payment to HPE of any applicable fees.  Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee.  Transferee must agree in writing to be bound by the applicable software license terms.  Customer may transfer firmware only upon transfer of associated hardware.

 

  1. License Compliance.  HPE may audit Customer compliance with the software license terms.  Upon reasonable notice, HPE may conduct an audit during normal business hours (with the auditor’s costs being at HPE’s expense).  If an audit reveals underpayments then Customer will pay to HPE such underpayments.  If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HPE for the auditor costs.

 

  1. Personal Information.  Each party shall comply with their respective obligations under applicable data protection legislation.  HPE does not intend to have access to personally identifiable information (“PII”) of Customer in providing services.  To the extent HPE has access to Customer PII stored on a system or device of Customer, such access will likely be incidental and Customer will remain the data controller of Customer PII at all times.  HPE will use any PII to which it has access strictly for purposes of delivering the services ordered.

 

  1. US Federal Government Use.  If software is licensed to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HPE’s standard commercial license.

 

  1. Global Trade Compliance.  If Customer exports, imports or otherwise transfers software product and/or deliverables provided under this Appendix, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations.  HPE may suspend its performance under this Appendix to the extent required by laws applicable to either party.

 

  1. Limitation of Liability.  HPE’s liability to Customer under this Appendix is limited to the greater of $1,000,000 or the amount payable by Customer to HPE for the relevant Order.   Neither Customer nor HPE will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; wilful repudiation of the Agreement; nor any liability which may not be excluded or limited by applicable law. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.   

 

  1. General.   This Appendix represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.

 

The parties confirm their agreement to these terms either by referencing them in the relevant Order or by executing below:

 

Signed for HPE:

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

HPE Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

Signed for Customer:

 

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

Customer Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

The following terms apply if you are ordering in Germany:

HPE CUSTOMER TERMS - SOFTWARE-AS-A-SERVICE

 
  1. Scope and Parties.  These terms and the applicable Order (collectively, the “Agreement”) govern the purchase of SaaS from the Hewlett Packard Enterprise entity receiving the Order (“HPE”) by the Customer entity identified below (“Customer”). 
  2. Definitions.   
  1. SaaS Order” or “Order” means the accepted order for a SaaS including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) standard or negotiated service descriptions or data sheets and their supplements and may be available to Customer in hard copy or by accessing a designated HPE website.          
  2. SaaS” means the online solutions that HPE provides, as described in the Order, including the Supporting Material and other exhibits or attachments that are made an integral part of this Agreement.  It also includes documents and other content, devices, hardware and software and other materials to the extent provided by HPE in connection with SaaS (“HPE SaaS Materials”). 
  1. Access Rights. During the applicable SaaS Order Term, HPE provides Customer with non-exclusive and non-transferable access and the right to use SaaS in accordance with this Agreement.
  1. Scope and Order Placement.  The term of each SaaS Order is stated therein (“SaaS Order Term”).  These terms may be used by Customer either for a single Order or as a framework for multiple Orders. Customer may place orders with HPE through our website, customer-specific portal, or by letter, fax or e-mail. The term of this Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 17 (Termination).
  1. Prices and Taxes.  Prices will be as quoted in writing by HPE or, in the absence of a written quote, as set out on our website, customer-specific portal, or HPE published list price at the time an order is submitted to HPE.  Prices are exclusive of taxes, duties, and fees unless otherwise quoted. If a withholding tax is required by law, please contact the HPE order representative to discuss appropriate procedures. 
  2. Invoices and Payment.  Customer agrees to pay all invoiced amounts within thirty (30) days of HPE’s invoice date. HPE may suspend or cancel performance of open Orders if Customer fails to make payments when due.
  3. SaaS Data. The applicable Supporting Material may describe the data and content that is collected or otherwise received from Customer by or through the access or use of SaaS (“Customer-provided SaaS Data”) and may describe additional categories of data generated by Customer’s access or use of SaaS.  Customer has sole responsibility for the accuracy, quality, and legality of any Customer-provided SaaS Data, including the means by which it was obtained by Customer.  As between HPE and Customer, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer-provided SaaS Data.  HPE will use Customer-provided SaaS Data only as necessary to provide SaaS (including preventative and reactive technical support), or as permitted by Customer, or as otherwise required by law.  
  1. SaaS Performance.  HPE’s ability to deliver SaaS will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. HPE will perform SaaS by qualified personnel and in a professional manner consistent with the Supporting Material. To the extent permitted by law, HPE disclaims all other warranties.  HPE does not warrant that SaaS will be uninterrupted or error free. If HPE provides Customer with a free-of-charge SaaS during a specific Order Term, including but not limited to SaaS provided on an evaluation or “freemium” basis, SaaS is provided “AS IS” and to the extent permitted by law, HPE disclaims all warranties and liability.
  2. Intellectual Property Rights.  No transfer of ownership of any intellectual property will occur under this Agreement.  Customer grants HPE a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Customer-provided SaaS Data, that is necessary for HPE and its designees to perform the ordered services.   
  3. Intellectual Property Rights Infringement.  HPE will defend and/or settle any claims against Customer that allege that an HPE-branded product or service as supplied under this Agreement infringes the intellectual property rights of a third party.  HPE will rely on Customer’s prompt notification of the claim and cooperation with our defense.  HPE may modify the product or service so as to be non-infringing and materially equivalent, or may procure a license. If these options are not available, HPE will refund to Customer the balance of any pre-paid amount for SaaS or support services. Should the SaaS Order include Software products, the refund will equal the amount paid for the affected product in the first year or the depreciated value thereafter or for professional services, the amount paid. HPE is not responsible for claims resulting from Customer-provided SaaS Data or from any unauthorized use of the products or services.  This section shall also apply to deliverables identified as such in the relevant Supporting Material except that HPE is not responsible for claims resulting from deliverables content or design provided by Customer.
  4. SaaS Usage Limitations.  SaaS may be used only for Customer’s internal business purposes and not for commercialization.  SaaS Customers will not: (i) exceed any usage limitations identified in the Supporting Material; (ii) except to the extent expressly permitted in Supporting Material, sell, resell, license, sublicense, lease, rent or distribute SaaS or include SaaS as a service bureau or outsourcing offering, or make any portion of SaaS available for the benefit of any third party; (iii) copy or reproduce any portion, feature, function, or user interface of SaaS; (iv) interfere with or disrupt the integrity or performance of the SaaS; (v) use SaaS to submit, send or store Customer-provided SaaS Data that is infringing, obscene, threatening, libellous or otherwise unlawful or tortuous material or material in violation of any third party’s privacy rights;  (vi) access SaaS to build a competitive product or service, or (vii) reverse engineer SaaS.  Customer is responsible for complying with all terms of use for any software, content, service or website it loads, creates or accesses when using SaaS.
  5. Confidentiality.  Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment.  Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose.  Confidential Information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as the information remains confidential.  These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.
  6. Personal Data. 
  1. If, in the course of providing SaaS, HPE processes Customer Personal Data, HPE shall process such data only as permitted under this Agreement and in compliance with data protection legislation to which it is subject as a service provider and processor of Customer Personal Data. Exhibit 2 “Data Protection Regulations” shall apply.    

b.  “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HPE processes in the course of providing SaaS.  The terms “controller”,”data subject”, “processor”, “process”, “processed”, “processing”, and “personal data” used in this Addendum shall be as defined by EU Directive 95/46/EC, unless otherwise defined by applicable data protection legislation.

  1. SaaS Operations.  So long as during the SaaS Order Term, HPE does not degrade the functionality of SaaS as described in Supporting Material:  (i) HPE retains sole control over the operation, provision, maintenance and management, and performance of SaaS, including the selection, deployment, modification and replacement of the HPE Software and/or HPE SaaS Materials , and maintenance, upgrades, corrections or repairs; and  (ii) HPE reserves the right to make any changes to SaaS that it deems necessary or useful to maintain or enhance the quality or delivery of HPE’s services to its customers, the competitive strength of or market for HPE’s services, or SaaS’ cost efficiency or performance.  HPE may use global resources, such as HPE Affiliates or third parties in worldwide locations to provide SaaS and perform its obligations. 
  2. Limitation of Liability.  For violation of obligations and tort, HPE and its vicarious agents are liable without limitation in case of wilful conduct and gross negligence. The same applies to malicious concealment of a defect. As far as the violation on the part of HPE and its vicarious agents is not considered as wilful or gross negligent the liability is limited to a maximum amount up to the greater of 1 mio. € or the amount payable by the Customer to HPE for the relevant Order that is the subject of the claim for the twelve month period immediately preceding the act or omission giving rise to the claim. Any further liability is excluded, in particular such for consequential damages and loss of profit or data. This limitation does not refer to damages due to unauthorized use of intellectual property, life threatening, bodily injury or adverse health effects and claims under the Product Liability Act. In case of provision of personnel for work subject to Customer’s supervision and direction, HPE shall only be liable if HPE had wilfully or gross negligently failed to choose such personnel in accordance with Customer’s requirements which had been notified to HPE in advance. Any liability shall be excluded if the damage had also occurred in case of faultless selection of such personnel.
  3. Disputes. If Customer is dissatisfied with SaaS and disagrees with HPE’s proposed resolution, HPE and Customer both agree to promptly escalate the issue to a Vice President (or equivalent executive) in the respective organization for an amicable resolution without prejudice to the right to later seek a legal remedy.
  4. Termination.  Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details.  If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in this Agreement which by their nature extend beyond termination or expiration of the agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
  5. Effect of Expiration or Termination.   Except for termination for cause, the termination of this Agreement shall not entitle Customer to any refund, and payment obligations are non-cancelable.  Upon expiration or termination of a SaaS Order Term, except as otherwise provided in the Supporting Material:

1.    HPE may disable all Customer access to SaaS, and Customer shall promptly return to HPE (or at HPE’s request destroy) any HPE SaaS Materials;

2.    At the end of the SaaS Order Term, HPE may make available certain data in the format generally provided by HPE, subject to offering-specific requirements;

3.    With respect to Customer Confidential Information that is not requested by Customer to be returned, HPE may retain such information, in its then-current state and solely to the extent and for so long as required by HPE’s corporate policies and applicable law until deleted in its ordinary course, provided it remains subject to all confidentiality and other applicable requirements of the Agreement.

  1.  General.   This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.  Modifications to the Agreement will be made only through a written amendment signed by both parties.  The Agreement will be governed by the laws of the country of HPE or the HPE Affiliate accepting the Order and the courts of that locale will have jurisdiction; however, HPE or its Affiliate may bring suit for payment in the country where the Customer Affiliate that placed the Order is located. Customer and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Claims arising or raised in the United States will be governed by the laws of the state of California, excluding rules as to choice and conflicts of law.

 

The parties confirm their agreement to these terms either by referencing them in the relevant Order or by executing below:

 

Signed for HPE:

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

HPE Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

Signed for Customer:

 

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

Customer Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

EXHIBIT 1 – SOFTWARE LICENSE / SUPPORT / PROFESSIONAL SERVICES  REGULATIONS

 

1.    Software Product Licenses, Support, and/or Professional Services.  To the extent that Customer’s Order for HPE SaaS includes Customer’s purchase of software product licenses, software product support, and/or professional services, this Exhibit applies and supplements the terms applicable between HPE and Customer for SaaS.  In the event of a conflict between this Exhibit and the Agreement, the terms and conditions of this Exhibit will govern for purpose of Customer’s Order for software product licenses, software product support, and/or professional services. 

2.    Definitions. Capitalized terms used but not defined in this Exhibit are as defined in the Agreement. “Supporting Material” may additionally include (as examples) software product lists and software specifications, support data sheets, published warranties etc.

3.    Order Arrangements; Delivery. Where appropriate, Orders must specify a delivery date.  If Customer extends the delivery date of an existing Order beyond ninety (90) days, then it will be considered a new order. HPE will use all commercially reasonable efforts to deliver software products in a timely manner. HPE may elect to deliver software and related software product/license information by electronic transmission or download.

4.    Support Services; Professional Services; Services Performance. HPE’s support services will be described in the applicable Supporting Material, which will cover the description of HPE’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.  HPE will deliver any ordered professional services as described in the applicable Supporting Material.  If deliverables are created by HPE specifically for Customer and identified as such in Supporting Material, HPE hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally.  HPE will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services. The acceptance process for professional services will apply only to deliverables specified in professional services Supporting Material, and shall not apply to other products or services to be provided by HPE.  Services are performed using generally recognized commercial practices and standards.  Customer agrees to provide prompt notice of any such service concerns and HPE will re-perform any service that fails to meet this standard.  If Supporting Material for professional services defines specific deliverables, HPE warrants those deliverables will conform materially to their written specifications for 12 months  following delivery.  If Customer notifies HPE of such a non-conformity during the 12 month period, HPE will promptly remedy the impacted deliverables or refund to Customer the fees paid for those deliverables and Customer will return those deliverables to HPE.

5.    Software Performance. HPE warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery.  HPE warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for twelve (12) months.  HPE does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HPE in Supporting Material.

6.    Product Warranty Claims; Remedies. Defects which affect the designated use of HPE software or of specific deliverables defined in the Supporting Material not only insignificantly authorize the Customer to enforce warranty claims. The Customer has at first only the right of supplementary performance within a reasonable period of time. The supplementary performance contains at sole discretion of HPE either rectification of defects or delivery of a new product. The interests of the Customer will be considered appropriately. If the supplementary performance fails or is not realizable because of other reasons the Customer may withdraw from the contract without any costs (withdrawal). Compensation for damages or reimbursement of expenses are excluded in the case of warranty claims, unless stated otherwise in clause “Limitation of Liability. However HPE has to pay all expenses which are necessary for the supplementary performance as far as the expenses are not based on the fact that the products were shipped to another place than the place of delivery afterwards, unless the shipping is in accordance with the normal use of the products. Any warranty claim will expire if any possible defect is based on the fact that the Customer or any third party, changes products without prior approval of HPE, has used or repaired them improperly, or products were installed, operated or maintained not in accordance with HPE guidelines. The Customer has to report defects immediately to HPE upon written notice. If the complain of defects is carried out wrongly HPE is entitled to ask the Customer for compensation of the occurred expenses of HPE. For warranty claims exists a limitation period of one year starting with the day of delivery or if applicable with the conclusion of the installation or (if the Customer delays the installation of HPE) at the latest 30 days after the delivery date.

7.    Eligibility.  HPE’s service,support and warranty commitments do not cover claims resulting from: (1) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material; (2) modifications or improper system maintenance or calibration not performed by HPE or authorized by HPE; (3) failure or functional limitations of any non-HPE software or product impacting systems receiving HPE support or service; (4) malware (e.g. virus, worm, etc.) not introduced by HPE; or (5) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HPE’s control.

8.    License Grant.  HPE grants Customer a non-exclusive license to use the version or release of the HPE-branded software license listed in the Order.  Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material.  For non-HPE branded software, the third party’s license terms will govern its use.

9.    Updates.  Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through an HPE software support agreement. Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment.  Updates are subject to the license terms in effect at the time that HPE makes them available to Customer.

10.  License Restrictions.  HPE may monitor use/license restrictions remotely and, if HPE makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software.  Customer may use this archival copy without paying an additional license only when the primary system is inoperable.  Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network.  Licenses that allow use over Customer’s intranet require restricted access by authorized users only.  Customer will also not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HPE with reasonably detailed information about those activities.   

11.  License Term and Termination.  Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, HPE may terminate the license upon written notice.  Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HPE, except that Customer may retain one copy for archival purposes only.

12.  License Transfer.  Customer may not sublicense, assign, transfer, rent or lease the software or software license except as permitted by HPE.  HPE-branded software licenses are generally transferable subject to HPE’s prior written authorization and payment to HPE of any applicable fees.  Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee.  Transferee must agree in writing to be bound by the applicable software license terms.  Customer may transfer firmware only upon transfer of associated hardware.

13.  License Compliance.  HPE may audit Customer compliance with the software license terms.  Upon reasonable notice, HPE may conduct an audit during normal business hours (with the auditor’s costs being at HPE’s expense).  If an audit reveals underpayments then Customer will pay to HPE such underpayments.  If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HPE for the auditor costs.

14.  US Federal Government Use.  If software is licensed to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HPE’s standard commercial license.

15.  Global Trade Compliance.  If Customer exports, imports or otherwise transfers software product and/or deliverables provided under this Exhibit, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations.  HPE may suspend its performance under this Exhibit to the extent required by laws applicable to either party.

 

 

 

EXHIBIT 2- DATA PROTECTION REGULATIONS

  1. To the extent HPE has access to Customer´s personal data for performing Software-as-a-Service (hereinafter “SaaS”), the Parties agree to apply the terms described below. HPE shall apply those technical and organizational measures required by the exhibit to § 9 BDSG as set out in the Security Description for Application Delivery Management and IT Operations Management Software-as-a-Service (SaaS), Version 1.0 (2015), that can be provided upon request.

 

Provisions pursuant to Sections 9, 11 of the German Federal Data Protection Act (BDSG):

 

  1. Underlying SaaS Contract. The terms of the agreement on commissioned data processing are based upon the SaaS contract concluded between the Parties, including the appendixes describing the SaaS services (SaaS data sheets) (the “Contract”). On the basis of the aforementioned Contract, HPE will process the Customer's personal data. The Contract defines the scope, nature, and purpose of the collection, processing and/or use of personal data by HPE, the type of personal data to be processed and the persons affected by the handling of personal data. The Customer may also provide additional written instructions. The duration of the commissioned data processing will be governed by the Contract.

 

  1. Correcting, blocking, and deleting data. HPE may only correct, delete or block data processed within the scope of the Contract in accordance with the instructions provided by the Customer. If a person asks HPE for information about his/her data or requests that HPE correct or delete his/her data, HPE shall immediately forward the request to the Customer.

 

  1. Obligations of HPE. To ensure proper processing of personal data, HPE will only use personnel who have entered into confidentiality agreements pursuant to Section 5 of the BDSG. If the security measures implemented by HPE do not satisfy the requirements of the Customer, the Customer will notify HPE immediately. Any errors or irregularities that are identified by the Customer when checking the results, and brought to HPE's attention, will be immediately rectified by HPE. HPE will process personal data and other operating data belonging to the customer only in accordance with the instructions provided by the Customer. HPE will not use the data transmitted for data processing for any other purpose, nor will HPE retain this data for any longer than required by the Customer, save to the extent required by legal retention periods. Copies or duplicates must not be created without informing the Customer. If HPE believes that an instruction from the Customer violates data protection legislation, HPE must notify the Customer. This duty to notify will not include a comprehensive legal review. Subcontracts may only be awarded to subcontractors following written consent by the Customer. A Customer's consent may only be withheld if the Customer has a material reason for doing so. The Customer's consent will be deemed to have been given with respect to subcontractors named by HPE prior to the conclusion of the Contract or which are regularly used by HPE to provide standardized services. If a subcontractor is a company within HPE's corporate group and is based in the European Union (EU) or the European Economic Area (EEA) or a safe third country, a subcontract may be awarded to the subcontractor without the prior written consent of the Customer. Irrespective of this, HPE will always be obliged to exercise due caution when choosing subcontractors and to inform the Customer accordingly. Furthermore, HPE must ensure that the data processing provisions agreed with the Customer also apply to all subcontracts awarded to subcontractors. If a subcontractor is operating outside the European Union (EU) or European Economic Area (EEA), an adequate level of data protection must be established pursuant to Sections 4b and 4c of the BDSG.  To this end, the Customer hereby authorizes HPE to execute a controller to processor EU Model Contract (C (2010) 593) on its behalf to cover the transfer of any Customer personal data which originates from the EEA to any HPE Affiliate supporting the SaaS or Professional Services and being located in a country which does not have a finding of adequacy pursuant to Article 25(6) of Directive 95.46/EC (the “Model Contract”).

 

  1. HPE will immediately inform the Customer of any incidents that must be reported pursuant to Section 42a of the BDSG, any serious operational malfunctions, and any suspected privacy violations or other irregularities that arise while processing the Customer's data. HPE has appointed a competent and reliable data protection officer pursuant to Section 4f of the BDSG.

 

  1. Control rights of the Customer. The Customer or a representative appointed by the Customer has a right of control with regard to proper processing of personal data and other operational data processed on behalf of the Customer. The rights of control will be exercised in consultation with HPE. HPE is obliged to assist the Customer in such controls and any controls of the competent authorities. These controls must be carried out in consideration of the business processes and HPE's need for security and confidentiality. The control of standardized services will be performed by controlling the test documents professionally created and submitted by HPE. HPE is also obliged to apply the control rights of the Customer to the subcontractors of HPE tasked with processing the Customer's data.

 

  1. Deletion of data and return of data carriers. After completion of the contractual work or earlier if requested by the Customer - at the latest upon termination of the Contract - HPE must return to the Customer all documents, processing results, usage results, and data sets that relate to the contractual relationship, or to destroy them in a manner compatible with data protection legislation following prior approval by the Customer. The same will apply to test material and rejected material. The manner in which data is deleted must be demonstrated upon request. HPE must retain any documentation serving as proof of commissioned data processing and proper data processing beyond the end of the Contract in accordance with the respective retention periods. To ease the burden on HPE, HPE can choose to hand over such documentation when the Contract terminates.

 

 

 The following terms apply if you are ordering in Spain:

 HPE CUSTOMER TERMS - SOFTWARE-AS-A-SERVICE

 
  1. Scope and Parties.  These terms and the applicable Order (collectively, the “Agreement”) govern the purchase of SaaS from the Hewlett Packard Enterprise entity receiving the Order (“HPE”) by the Customer entity identified below (“Customer”). 
  2. Definitions.   
  1. SaaS Order” or “Order” means the accepted order for a SaaS including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) standard or negotiated service descriptions or data sheets and their supplements and may be available to Customer in hard copy or by accessing a designated HPE website.          
  2. SaaS” means the online solutions that HPE provides, as described in the Order, including the Supporting Material and other exhibits or attachments that are made an integral part of this Agreement.  It also includes documents and other content, devices, hardware and software and other materials to the extent provided by HPE in connection with SaaS (“HPE SaaS Materials”). 
  1. Access Rights. During the applicable SaaS Order Term, HPE provides Customer with non-exclusive and non-transferable access and the right to use SaaS in accordance with this Agreement.
  1. Scope and Order Placement.  The term of each SaaS Order is stated therein (“SaaS Order Term”).  These terms may be used by Customer either for a single Order or as a framework for multiple Orders. Customer may place orders with HPE through our website, customer-specific portal, or by letter, fax or e-mail. The term of this Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 17 (Termination).
  1. Prices and Taxes.  Prices will be as quoted in writing by HPE or, in the absence of a written quote, as set out on our website, customer-specific portal, or HPE published list price at the time an order is submitted to HPE.  Prices are exclusive of taxes, duties, and fees unless otherwise quoted. If a withholding tax is required by law, please contact the HPE order representative to discuss appropriate procedures. 
  2. Invoices and Payment.  Customer agrees to pay all invoiced amounts within thirty (30) days of HPE’s invoice date. HPE may suspend or cancel performance of open Orders if Customer fails to make payments when due.
  3. SaaS Data. The applicable Supporting Material may describe the data and content that is collected or otherwise received from Customer by or through the access or use of SaaS (“Customer-provided SaaS Data”) and may describe additional categories of data generated by Customer’s access or use of SaaS.  Customer has sole responsibility for the accuracy, quality, and legality of any Customer-provided SaaS Data, including the means by which it was obtained by Customer.  As between HPE and Customer, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer-provided SaaS Data.  HPE will use Customer-provided SaaS Data only as necessary to provide SaaS (including preventative and reactive technical support), or as permitted by Customer, or as otherwise required by law.  
  1. SaaS Performance.  HPE’s ability to deliver SaaS will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. HPE will perform SaaS by qualified personnel and in a professional manner consistent with the Supporting Material. To the extent permitted by law, HPE disclaims all other warranties.  HPE does not warrant that SaaS will be uninterrupted or error free. If HPE provides Customer with a free-of-charge SaaS during a specific Order Term, including but not limited to SaaS provided on an evaluation or “freemium” basis, SaaS is provided “AS IS” and to the extent permitted by law, HPE disclaims all warranties and liability.
  2. Intellectual Property Rights.  No transfer of ownership of any intellectual property will occur under this Agreement.  Customer grants HPE a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Customer-provided SaaS Data, that is necessary for HPE and its designees to perform the ordered services.   
  3. Intellectual Property Rights Infringement.  HPE will defend and/or settle any claims against Customer that allege that an HPE-branded product or service as supplied under this Agreement infringes the intellectual property rights of a third party.  HPE will rely on Customer’s prompt notification of the claim and cooperation with our defense.  HPE may modify the product or service so as to be non-infringing and materially equivalent, or may procure a license. If these options are not available, HPE will refund to Customer the balance of any pre-paid amount for SaaS or support services. Should the SaaS Order include Software products, the refund will equal the amount paid for the affected product in the first year or the depreciated value thereafter or for professional services, the amount paid. HPE is not responsible for claims resulting from Customer-provided SaaS Data or from any unauthorized use of the products or services.  This section shall also apply to deliverables identified as such in the relevant Supporting Material except that HPE is not responsible for claims resulting from deliverables content or design provided by Customer.
  4. SaaS Usage Limitations.  SaaS may be used only for Customer’s internal business purposes and not for commercialization.  SaaS Customers will not: (i) exceed any usage limitations identified in the Supporting Material; (ii) except to the extent expressly permitted in Supporting Material, sell, resell, license, sublicense, lease, rent or distribute SaaS or include SaaS as a service bureau or outsourcing offering, or make any portion of SaaS available for the benefit of any third party; (iii) copy or reproduce any portion, feature, function, or user interface of SaaS; (iv) interfere with or disrupt the integrity or performance of the SaaS; (v) use SaaS to submit, send or store Customer-provided SaaS Data that is infringing, obscene, threatening, libellous or otherwise unlawful or tortuous material or material in violation of any third party’s privacy rights;  (vi) access SaaS to build a competitive product or service, or (vii) reverse engineer SaaS.  Customer is responsible for complying with all terms of use for any software, content, service or website it loads, creates or accesses when using SaaS.
  5. Confidentiality.  Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment.  Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose.  Confidential Information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as the information remains confidential.  These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.
  6. Personal Data. 
  1. If, in the course of providing SaaS, HPE processes Customer Personal Data, HPE shall process such data only as permitted under this Agreement and in compliance with data protection legislation to which it is subject as a service provider and processor of Customer Personal Data. Exhibit 2 “Data Protection Regulations” shall apply.    
  2.  “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HPE processes in the course of providing SaaS.  The terms “controller”,”data subject”, “processor”, “process”, “processed”, “processing”, and “personal data” used in this Addendum shall be as defined in the Spanish legislation (Law 15/1999, 13th December, of Personal Data Protection and the Royal Decree 1720/2007 of 21st December).
  1. SaaS Operations.  So long as during the SaaS Order Term, HPE does not degrade the functionality of SaaS as described in Supporting Material:  (i) HPE retains sole control over the operation, provision, maintenance and management, and performance of SaaS, including the selection, deployment, modification and replacement of the HPE Software and/or HPE SaaS Materials , and maintenance, upgrades, corrections or repairs; and  (ii) HPE reserves the right to make any changes to SaaS that it deems necessary or useful to maintain or enhance the quality or delivery of HPE’s services to its customers, the competitive strength of or market for HPE’s services, or SaaS’ cost efficiency or performance.  HPE may use global resources, such as HPE Affiliates or third parties in worldwide locations to provide SaaS and perform its obligations. 
  2. Limitation of Liability.  HPE’s liability to Customer under this Agreement is limited to the greater of $1,000,000 or the amount payable by Customer to HPE for the relevant Order that is the subject of the claim for the twelve (12) month period immediately preceding the act or omission giving rise to the claim.  Neither Customer nor HPE will be liable for lost revenues or profits, downtime costs, or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful misconduct or gross negligence of such a kind that it should be treated as wilful misconduct; willful repudiation of the Agreement; nor any liability which may not be excluded or limited by applicable law.  Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.
  3. Disputes. If Customer is dissatisfied with SaaS and disagrees with HPE’s proposed resolution, HPE and Customer both agree to promptly escalate the issue to a Vice President (or equivalent executive) in the respective organization for an amicable resolution without prejudice to the right to later seek a legal remedy.
  4. Termination.  Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details.  If either party becomes insolvent, unable to pay debts when due, , the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in this Agreement which by their nature extend beyond termination or expiration of the agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
  5. Effect of Expiration or Termination.   Except for termination for cause, the termination of this Agreement shall not entitle Customer to any refund, and payment obligations are non-cancelable.  Upon expiration or termination of a SaaS Order Term, except as otherwise provided in the Supporting Material:

1.    HPE may disable all Customer access to SaaS, and Customer shall promptly return to HPE (or at HPE’s request destroy) any HPE SaaS Materials;

2.    At the end of the SaaS Order Term, HPE may make available certain data in the format generally provided by HPE, subject to offering-specific requirements;

3.    With respect to Customer Confidential Information that is not requested by Customer to be returned, HPE may retain such information, in its then-current state and solely to the extent and for so long as required by HPE’s corporate policies and applicable law until deleted in its ordinary course, provided it remains subject to all confidentiality and other applicable requirements of the Agreement.

  1.  General.   This Addendum represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.  Modifications to the Addendum will be made only through a written amendment signed by both parties.  The Addendum will be governed by the laws of the country of HPE or the HPE Affiliate accepting the Order and the courts of that locale will have jurisdiction; however, HPE or its Affiliate may bring suit for payment in the country where the Customer Affiliate that placed the Order is located. Customer and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Claims arising or raised in the United States will be governed by the laws of the state of California, excluding rules as to choice and conflicts of law.

 

The parties confirm their agreement to these terms either by referencing them in the relevant Order or by executing below:

 

Signed for HPE:

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

HPE Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

Signed for Customer:

 

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

Customer Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

 

EXHIBIT 1 – SOFTWARE LICENSE / SUPPORT / PROFESSIONAL SERVICES  REGULATIONS

 

 

1.    Software Product Licenses, Support, and/or Professional Services.  To the extent that Customer’s Order for HPE SaaS includes Customer’s purchase of software product licenses, software product support, and/or professional services, this Exhibit applies and supplements the terms applicable between HPE and Customer for SaaS.  In the event of a conflict between this Exhibit and the Agreement, the terms and conditions of this Exhibit will govern for purpose of Customer’s Order for software product licenses, software product support, and/or professional services. 

2.    Definitions. Capitalized terms used but not defined in this Exhibit are as defined in the Agreement. “Supporting Material” may additionally include (as examples) software product lists and software specifications, support data sheets, published warranties etc.

3.    Order Arrangements; Delivery. Where appropriate, Orders must specify a delivery date.  If Customer extends the delivery date of an existing Order beyond ninety (90) days, then it will be considered a new order. HPE will use all commercially reasonable efforts to deliver software products in a timely manner. HPE may elect to deliver software and related software product/license information by electronic transmission or download.

4.    Support Services; Professional Services; Services Performance. HPE’s support services will be described in the applicable Supporting Material, which will cover the description of HPE’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.  HPE will deliver any ordered professional services as described in the applicable Supporting Material.  If deliverables are created by HPE specifically for Customer and identified as such in Supporting Material, HPE hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally.  HPE will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services. The acceptance process for professional services will apply only to deliverables specified in professional services Supporting Material, and shall not apply to other products or services to be provided by HPE.  Services are performed using generally recognized commercial practices and standards.  Customer agrees to provide prompt notice of any such service concerns and HPE will re-perform any service that fails to meet this standard.  If Supporting Material for professional services defines specific deliverables, HPE warrants those deliverables will conform materially to their written specifications for 30 days following delivery.  If Customer notifies HPE of such a non-conformity during the 30 day period, HPE will promptly remedy the impacted deliverables or refund to Customer the fees paid for those deliverables and Customer will return those deliverables to HPE.

5.    Software Performance. HPE warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery.  HPE warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for ninety (90) days.  HPE does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HPE in Supporting Material.

6.    Product Warranty Claims; Remedies.  When we receive a valid warranty claim for an HPE software product, HPE will either repair the relevant defect or replace the software product.  If HPE is unable to complete the repair or replace the software product within a reasonable time, Customer will be entitled to a full refund upon the prompt written confirmation by Customer that the relevant software product has been destroyed or permanently disabled.  HPE will pay for shipment of repaired or replaced software products to Customer.  This Exhibit states all remedies for warranty claims.  To the extent permitted by law, HPE disclaims all other warranties.

7.    Eligibility.  HPE’s service,support and warranty commitments do not cover claims resulting from: (1) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material; (2) modifications or improper system maintenance or calibration not performed by HPE or authorized by HPE; (3) failure or functional limitations of any non-HPE software or product impacting systems receiving HPE support or service; (4) malware (e.g. virus, worm, etc.) not introduced by HPE; or (5) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HPE’s control.

8.    License Grant.  HPE grants Customer a non-exclusive license to use the version or release of the HPE-branded software license listed in the Order.  Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material.  For non-HPE branded software, the third party’s license terms will govern its use.

9.    Updates.  Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through an HPE software support agreement. Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment.  Updates are subject to the license terms in effect at the time that HPE makes them available to Customer.

10.  License Restrictions.  HPE may monitor use/license restrictions remotely and, if HPE makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software.  Customer may use this archival copy without paying an additional license only when the primary system is inoperable.  Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network.  Licenses that allow use over Customer’s intranet require restricted access by authorized users only.  Customer will also not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HPE with reasonably detailed information about those activities.   

11.  License Term and Termination.  Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, HPE may terminate the license upon written notice.  Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HPE, except that Customer may retain one copy for archival purposes only.

12.  License Transfer.  Customer may not sublicense, assign, transfer, rent or lease the software or software license except as permitted by HPE.  HPE-branded software licenses are generally transferable subject to HPE’s prior written authorization and payment to HPE of any applicable fees.  Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee.  Transferee must agree in writing to be bound by the applicable software license terms.  Customer may transfer firmware only upon transfer of associated hardware.

13.  License Compliance.  HPE may audit Customer compliance with the software license terms.  Upon reasonable notice, HPE may conduct an audit during normal business hours (with the auditor’s costs being at HPE’s expense).  If an audit reveals underpayments then Customer will pay to HPE such underpayments.  If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HPE for the auditor costs.

14.  US Federal Government Use.  If software is licensed to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HPE’s standard commercial license.

15.  Global Trade Compliance.  If Customer exports, imports or otherwise transfers software product and/or deliverables provided under this Exhibit, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations.  HPE may suspend its performance under this Exhibit to the extent required by laws applicable to either party.

 

 

 

EXHIBIT 2- DATA PROTECTION REGULATIONS

 

Definitions

(i)      The terms “controller”, “data subject”, “processor”, “process, “processed” or “processing” and “personal data” used in this Addendum shall be as defined in  the Spanish legislation (Law 15/1999, 13th December, of Personal Data Protection and the Royal Decree 1720/2007 of 21st December).

(ii)     “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HPE processes in the course of providing SaaS.

Data Processing

To the extent HPE has access to Customer Personal Data for performing SaaS services, in accordance with article 12 of the Law 15/1999, 13th December, of Personal Data Protection (“Ley Orgánica de Protección de Datos de Carácter Personal”), and the Royal Decree 1720/2007 of 21st December (“Real Decreto 1720/2007 de 21 de Diciembre por el que se aprueba el Reglamento de Desarrollo de la Ley Orgánica 15/1999”):

  • HPE shall process such data only in accordance with the instructions of the Customer and solely for the purposes set forth in this Agreement.
  • HPE shall not communicate the above referred data to any third party even for their preservation and shall destroy or return to the Customer, at customer choice, any personal data in his possession upon termination of this agreement.
  • HPE shall maintain the secret and confidentiality of the personal data.

 

  1. Customer hereby appoints HPE as a processor of Customer Personal Data. Customer and HPE shall comply with all data protection laws to which they are subject, as a controller and processor respectively, and which are applicable to their information security, privacy and data protection obligations in connection with Customer Personal Data.
  2. HPE shall only process Customer Personal Data as required to provide SaaS and in accordance with the Customer’s written instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Customer to HPE under this Agreement) and to the extent that such instructions are not compatible with HPE’s obligations under this Agreement they shall be implemented as agreed by the parties.Unless otherwise agreed, HPE shall implement the security measures required in the section 1ª, Chapter III, Title VIII of the above mentioned Royal Decree.
  3. HPE has implemented technical and organisational measures to protect Customer Personal Data during the performance of SaaS against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the hp.com website or can otherwise be provided on Customer’s request as HPE´s  Security Description (SaaS or Software Support). These include:
    1. Physical access controls
    2. Access Controls
    3. Access Limitation Controls
    4. Input Controls
    5. Job Controls
    6. Availability Controls
    7. Data Separation
  4. HPE will ensure that all employees involved in the processing of Customer Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection of personal data.
  5. Where the Supporting Material identifies categories of Customer Personal Data or other Customer-provided data that are to be returned to Customer upon termination, HPE will supply such data to Customer in the agreed format and will delete from HPE’s own systems any remaining copies of such Customer Personal Data or other data, unless legislation applicable to it prevents it from doing so.
  6. HPE will within five (5) business days of receipt, refer to Customer any queries from data subjects in connection with Customer Personal Data, for Customer to deal with.
  7. HPE will on written request of Customer promptly amend or delete any Customer Personal Data to the extent that Customer is not able to amend or delete the data itself.
  8. Customer Personal Data will be transferred to HPE’s parent company, Hewlett Packard Enterprise Company in the United States of America, and onward to other affiliate and third party subcontractors located outside the EEA and Switzerland who support SaaS, a list of which is available upon request.
  9. If and to the extent HPE is acting as a data processor or sub-processor with respect to Customer Personal Data pertaining to residents of the European Economic Area or Switzerland ("EEA+ Data Subjects"), the EU Standard Contractual Clauses (Processors) (short: “Model Contract”)  shall apply and supersede any conflicting terms of this Exhibit to the extent EEA+ Data Subjects are concerned. Between HPE and the Customer, this Exhibit shall prevail in case of any conflicts or inconsistencies with the Model Contract. Any losses suffered by data exporter or data importer (both as defined in the Model Contract) shall be treated as if they had been suffered by Customer or HPE respectively and shall in all cases be recovered by Customer or HPE subject to any limits on that party’s liability contained in this Agreement in section “limitation of liability”. Nothing in that section “limitation of liability “ shall limit the liability of either party in relation to a claim by a data subject under a Model Contract.
  10. When HPE obtains formal approval for binding corporate rules for processors (BCR-P), the parties may agree to rely on the BCR-P for transfers of Customer Personal Data. The relevant information and additional contract terms will be provided to Customer on request.
  11. HPE will ensure that any affiliate or third party subcontractor involved in processing Customer Personal Data enters into a written agreement with HPE (which may be an inter-company agreement in the case of affiliates), which includes obligations substantially similar to those contained in this Addendum and appropriate to the nature of the processing involved.

The following terms apply if you are ordering in Switzerland or other EEA countries not listed above:

HPE CUSTOMER TERMS - SOFTWARE-AS-A-SERVICE

 
  1. Scope and Parties.  These terms and the applicable Order (collectively, the “Agreement”) govern the purchase of SaaS from the Hewlett Packard Enterprise entity receiving the Order (“HPE”) by the Customer entity identified below (“Customer”). 
  2. Definitions.   
  1. SaaS Order” or “Order” means the accepted order for a SaaS including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) standard or negotiated service descriptions or data sheets and their supplements and may be available to Customer in hard copy or by accessing a designated HPE website.          
  2. SaaS” means the online solutions that HPE provides, as described in the Order, including the Supporting Material and other exhibits or attachments that are made an integral part of this Agreement.  It also includes documents and other content, devices, hardware and software and other materials to the extent provided by HPE in connection with SaaS (“HPE SaaS Materials”). 
  1. Access Rights. During the applicable SaaS Order Term, HPE provides Customer with non-exclusive and non-transferable access and the right to use SaaS in accordance with this Agreement.
  1. Scope and Order Placement.  The term of each SaaS Order is stated therein (“SaaS Order Term”).  These terms may be used by Customer either for a single Order or as a framework for multiple Orders. Customer may place orders with HPE through our website, customer-specific portal, or by letter, fax or e-mail. The term of this Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 17 (Termination).
  1. Prices and Taxes.  Prices will be as quoted in writing by HPE or, in the absence of a written quote, as set out on our website, customer-specific portal, or HPE published list price at the time an order is submitted to HPE.  Prices are exclusive of taxes, duties, and fees unless otherwise quoted. If a withholding tax is required by law, please contact the HPE order representative to discuss appropriate procedures. 
  2. Invoices and Payment.  Customer agrees to pay all invoiced amounts within thirty (30) days of HPE’s invoice date. HPE may suspend or cancel performance of open Orders if Customer fails to make payments when due.
  3. SaaS Data. The applicable Supporting Material may describe the data and content that is collected or otherwise received from Customer by or through the access or use of SaaS (“Customer-provided SaaS Data”) and may describe additional categories of data generated by Customer’s access or use of SaaS.  Customer has sole responsibility for the accuracy, quality, and legality of any Customer-provided SaaS Data, including the means by which it was obtained by Customer.  As between HPE and Customer, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer-provided SaaS Data.  HPE will use Customer-provided SaaS Data only as necessary to provide SaaS (including preventative and reactive technical support), or as permitted by Customer, or as otherwise required by law.  
  1. SaaS Performance.  HPE’s ability to deliver SaaS will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services. HPE will perform SaaS by qualified personnel and in a professional manner consistent with the Supporting Material. To the extent permitted by law, HPE disclaims all other warranties.  HPE does not warrant that SaaS will be uninterrupted or error free. If HPE provides Customer with a free-of-charge SaaS during a specific Order Term, including but not limited to SaaS provided on an evaluation or “freemium” basis, SaaS is provided “AS IS” and to the extent permitted by law, HPE disclaims all warranties and liability.
  2. Intellectual Property Rights.  No transfer of ownership of any intellectual property will occur under this Agreement.  Customer grants HPE a non-exclusive, worldwide, royalty-free right and license to any intellectual property, including Customer-provided SaaS Data, that is necessary for HPE and its designees to perform the ordered services.   
  3. Intellectual Property Rights Infringement.  HPE will defend and/or settle any claims against Customer that allege that an HPE-branded product or service as supplied under this Agreement infringes the intellectual property rights of a third party.  HPE will rely on Customer’s prompt notification of the claim and cooperation with our defense.  HPE may modify the product or service so as to be non-infringing and materially equivalent, or may procure a license. If these options are not available, HPE will refund to Customer the balance of any pre-paid amount for SaaS or support services. Should the SaaS Order include Software products, the refund will equal the amount paid for the affected product in the first year or the depreciated value thereafter or for professional services, the amount paid. HPE is not responsible for claims resulting from Customer-provided SaaS Data or from any unauthorized use of the products or services.  This section shall also apply to deliverables identified as such in the relevant Supporting Material except that HPE is not responsible for claims resulting from deliverables content or design provided by Customer.
  4. SaaS Usage Limitations.  SaaS may be used only for Customer’s internal business purposes and not for commercialization.  SaaS Customers will not: (i) exceed any usage limitations identified in the Supporting Material; (ii) except to the extent expressly permitted in Supporting Material, sell, resell, license, sublicense, lease, rent or distribute SaaS or include SaaS as a service bureau or outsourcing offering, or make any portion of SaaS available for the benefit of any third party; (iii) copy or reproduce any portion, feature, function, or user interface of SaaS; (iv) interfere with or disrupt the integrity or performance of the SaaS; (v) use SaaS to submit, send or store Customer-provided SaaS Data that is infringing, obscene, threatening, libellous or otherwise unlawful or tortuous material or material in violation of any third party’s privacy rights;  (vi) access SaaS to build a competitive product or service, or (vii) reverse engineer SaaS.  Customer is responsible for complying with all terms of use for any software, content, service or website it loads, creates or accesses when using SaaS.
  5. Confidentiality.  Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment.  Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose.  Confidential Information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as the information remains confidential.  These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.
  6. Personal Data. 
  1. If, in the course of providing SaaS, HPE processes Customer Personal Data, HPE shall process such data only as permitted under this Agreement and in compliance with data protection legislation to which it is subject as a service provider and processor of Customer Personal Data. Exhibit 2 “Data Protection Regulations” shall apply.    
  2.  “Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HPE processes in the course of providing SaaS.  The terms “controller”,”data subject”, “processor”, “process”, “processed”, “processing”, and “personal data” used in this Addendum shall be as defined by EU Directive 95/46/EC, unless otherwise defined by applicable data protection legislation.
  1. SaaS Operations.  So long as during the SaaS Order Term, HPE does not degrade the functionality of SaaS as described in Supporting Material:  (i) HPE retains sole control over the operation, provision, maintenance and management, and performance of SaaS, including the selection, deployment, modification and replacement of the HPE Software and/or HPE SaaS Materials , and maintenance, upgrades, corrections or repairs; and  (ii) HPE reserves the right to make any changes to SaaS that it deems necessary or useful to maintain or enhance the quality or delivery of HPE’s services to its customers, the competitive strength of or market for HPE’s services, or SaaS’ cost efficiency or performance.  HPE may use global resources, such as HPE Affiliates or third parties in worldwide locations to provide SaaS and perform its obligations. 
  2. Limitation of Liability.  HPE’s liability to Customer under this Agreement is limited to the greater of $1,000,000 or the amount payable by Customer to HPE for the relevant Order that is the subject of the claim for the twelve (12) month period immediately preceding the act or omission giving rise to the claim.  Neither Customer nor HPE will be liable for lost revenues or profits, downtime costs, or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; nor any liability which may not be excluded or limited by applicable law.  Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.
  3. Disputes. If Customer is dissatisfied with SaaS and disagrees with HPE’s proposed resolution, HPE and Customer both agree to promptly escalate the issue to a Vice President (or equivalent executive) in the respective organization for an amicable resolution without prejudice to the right to later seek a legal remedy.
  4. Termination.  Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details.  If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in this Agreement which by their nature extend beyond termination or expiration of the agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
  5. Effect of Expiration or Termination.   Except for termination for cause, the termination of this Agreement shall not entitle Customer to any refund, and payment obligations are non-cancelable.  Upon expiration or termination of a SaaS Order Term, except as otherwise provided in the Supporting Material:

1.    HPE may disable all Customer access to SaaS, and Customer shall promptly return to HPE (or at HPE’s request destroy) any HPE SaaS Materials;

2.    At the end of the SaaS Order Term, HPE may make available certain data in the format generally provided by HPE, subject to offering-specific requirements;

3.    With respect to Customer Confidential Information that is not requested by Customer to be returned, HPE may retain such information, in its then-current state and solely to the extent and for so long as required by HPE’s corporate policies and applicable law until deleted in its ordinary course, provided it remains subject to all confidentiality and other applicable requirements of the Agreement.

  1.  General.   This Addendum represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.  Modifications to the Addendum will be made only through a written amendment signed by both parties.  The Addendum will be governed by the laws of the country of HPE or the HPE Affiliate accepting the Order and the courts of that locale will have jurisdiction; however, HPE or its Affiliate may bring suit for payment in the country where the Customer Affiliate that placed the Order is located. Customer and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Claims arising or raised in the United States will be governed by the laws of the state of California, excluding rules as to choice and conflicts of law.

 

 

The parties confirm their agreement to these terms either by referencing them in the relevant Order or by executing below:

 

Signed for HPE:

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

HPE Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

Signed for Customer:

 

……………………………………………………………………………………………

[Insert signature]

 

By:

 

……………………………………………………………………………………………

[Insert name]

 

Title:

 

……………………………………………………………………………………………

[Insert signatory’s business title]

 

Customer Entity:

 

……………………………………………………………………………………………

 

Date:

 

……………………………………………………………………………………………

[Insert date]

 

 

 

 

 

 

 

 

 

EXHIBIT 1 – SOFTWARE LICENSE / SUPPORT / PROFESSIONAL SERVICES  REGULATIONS

 

1.    Software Product Licenses, Support, and/or Professional Services.  To the extent that Customer’s Order for HPE SaaS includes Customer’s purchase of software product licenses, software product support, and/or professional services, this Exhibit applies and supplements the terms applicable between HPE and Customer for SaaS.  In the event of a conflict between this Exhibit and the Agreement, the terms and conditions of this Exhibit will govern for purpose of Customer’s Order for software product licenses, software product support, and/or professional services. 

2.    Definitions. Capitalized terms used but not defined in this Exhibit are as defined in the Agreement. “Supporting Material” may additionally include (as examples) software product lists and software specifications, support data sheets, published warranties etc.

3.    Order Arrangements; Delivery. Where appropriate, Orders must specify a delivery date.  If Customer extends the delivery date of an existing Order beyond ninety (90) days, then it will be considered a new order. HPE will use all commercially reasonable efforts to deliver software products in a timely manner. HPE may elect to deliver software and related software product/license information by electronic transmission or download.

4.    Support Services; Professional Services; Services Performance. HPE’s support services will be described in the applicable Supporting Material, which will cover the description of HPE’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.  HPE will deliver any ordered professional services as described in the applicable Supporting Material.  If deliverables are created by HPE specifically for Customer and identified as such in Supporting Material, HPE hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally.  HPE will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services. The acceptance process for professional services will apply only to deliverables specified in professional services Supporting Material, and shall not apply to other products or services to be provided by HPE.  Services are performed using generally recognized commercial practices and standards.  Customer agrees to provide prompt notice of any such service concerns and HPE will re-perform any service that fails to meet this standard.  If Supporting Material for professional services defines specific deliverables, HPE warrants those deliverables will conform materially to their written specifications for 30 days following delivery.  If Customer notifies HPE of such a non-conformity during the 30 day period, HPE will promptly remedy the impacted deliverables or refund to Customer the fees paid for those deliverables and Customer will return those deliverables to HPE.

5.    Software Performance. HPE warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery.  HPE warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for ninety (90) days.  HPE does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HPE in Supporting Material.

6.    Product Warranty Claims; Remedies.  When we receive a valid warranty claim for an HPE software product, HPE will either repair the relevant defect or replace the software product.  If HPE is unable to complete the repair or replace the software product within a reasonable time, Customer will be entitled to a full refund upon the prompt written confirmation by Customer that the relevant software product has been destroyed or permanently disabled.  HPE will pay for shipment of repaired or replaced software products to Customer.  This Exhibit states all remedies for warranty claims.  To the extent permitted by law, HPE disclaims all other warranties.

7.    Eligibility.  HPE’s service,support and warranty commitments do not cover claims resulting from: (1) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material; (2) modifications or improper system maintenance or calibration not performed by HPE or authorized by HPE; (3) failure or functional limitations of any non-HPE software or product impacting systems receiving HPE support or service; (4) malware (e.g. virus, worm, etc.) not introduced by HPE; or (5) abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HPE’s control.

8.    License Grant.  HPE grants Customer a non-exclusive license to use the version or release of the HPE-branded software license listed in the Order.  Permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material.  For non-HPE branded software, the third party’s license terms will govern its use.

9.    Updates.  Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through an HPE software support agreement. Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment.  Updates are subject to the license terms in effect at the time that HPE makes them available to Customer.

10.  License Restrictions.  HPE may monitor use/license restrictions remotely and, if HPE makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software.  Customer may use this archival copy without paying an additional license only when the primary system is inoperable.  Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network.  Licenses that allow use over Customer’s intranet require restricted access by authorized users only.  Customer will also not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HPE with reasonably detailed information about those activities.   

11.  License Term and Termination.  Unless otherwise specified, any license granted is perpetual, provided however that if Customer fails to comply with the terms of this Agreement, HPE may terminate the license upon written notice.  Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HPE, except that Customer may retain one copy for archival purposes only.

12.  License Transfer.  Customer may not sublicense, assign, transfer, rent or lease the software or software license except as permitted by HPE.  HPE-branded software licenses are generally transferable subject to HPE’s prior written authorization and payment to HPE of any applicable fees.  Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee.  Transferee must agree in writing to be bound by the applicable software license terms.  Customer may transfer firmware only upon transfer of associated hardware.

13.  License Compliance.  HPE may audit Customer compliance with the software license terms.  Upon reasonable notice, HPE may conduct an audit during normal business hours (with the auditor’s costs being at HPE’s expense).  If an audit reveals underpayments then Customer will pay to HPE such underpayments.  If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HPE for the auditor costs.

14.  US Federal Government Use.  If software is licensed to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HPE’s standard commercial license.

15.  Global Trade Compliance.  If Customer exports, imports or otherwise transfers software product and/or deliverables provided under this Exhibit, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations.  HPE may suspend its performance under this Exhibit to the extent required by laws applicable to either party.

 

 

 

EXHIBIT 2- DATA PROTECTION REGULATIONS

  1. Customer hereby appoints HPE as a processor of Customer Personal Data. Customer and HPE shall comply with all data protection laws to which they are subject, as a controller and processor respectively, and which are applicable to their information security, privacy and data protection obligations in connection with Customer Personal Data.
  2. HPE shall only process Customer Personal Data as required to provide SaaS and in accordance with the Customer’s written instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Customer to HPE under this Agreement) and to the extent that such instructions are not compatible with HPE’s obligations under this Agreement they shall be implemented as agreed by the parties.
  3. HPE has implemented technical and organisational measures to protect Customer Personal Data during the performance of SaaS against accidental, unauthorised or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the hp.com website or can otherwise be provided on Customer’s request as HPE´s  Security Description (SaaS or Software Support). These include:
    1. Physical access controls
    2. Access Controls
    3. Access Limitation Controls
    4. Input Controls
    5. Job Controls
    6. Availability Controls
    7. Data Separation
  4. HPE will ensure that all employees involved in the processing of Customer Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection of personal data.
  5. Where the Supporting Material identifies categories of Customer Personal Data or other Customer-provided data that are to be returned to Customer upon termination, HPE will supply such data to Customer in the agreed format and will delete from HPE’s own systems any remaining copies of such Customer Personal Data or other data, unless legislation applicable to it prevents it from doing so.
  6. HPE will within five (5) business days of receipt, refer to Customer any queries from data subjects in connection with Customer Personal Data, for Customer to deal with.
  7. HPE will on written request of Customer promptly amend or delete any Customer Personal Data to the extent that Customer is not able to amend or delete the data itself.
  8. Customer Personal Data will be transferred to HPE’s parent company, Hewlett Packard Enterprise Company in the United States of America, and onward to other affiliate and third party subcontractors located outside the EEA and Switzerland who support SaaS, a list of which is available upon request.
  9. If and to the extent HPE is acting as a data processor or sub-processor with respect to Customer Personal Data pertaining to residents of the European Economic Area or Switzerland ("EEA+ Data Subjects"), the EU Standard Contractual Clauses (Processors) (short: “Model Contract”)  shall apply and supersede any conflicting terms of this Exhibit to the extent EEA+ Data Subjects are concerned. Between HPE and the Customer, this Exhibit shall prevail in case of any conflicts or inconsistencies with the Model Contract. Any losses suffered by data exporter or data importer (both as defined in the Model Contract) shall be treated as if they had been suffered by Customer or HPE respectively and shall in all cases be recovered by Customer or HPE subject to any limits on that party’s liability contained in this Agreement in section “limitation of liability”. Nothing in that section “limitation of liability “ shall limit the liability of either party in relation to a claim by a data subject under a Model Contract.
  10. When HPE obtains formal approval for binding corporate rules for processors (BCR-P), the parties may agree to rely on the BCR-P for transfers of Customer Personal Data. The relevant information and additional contract terms will be provided to Customer on request.
  11. HPE will ensure that any affiliate or third party subcontractor involved in processing Customer Personal Data enters into a written agreement with HPE (which may be an inter-company agreement in the case of affiliates), which includes obligations substantially similar to those contained in this Addendum and appropriate to the nature of the processing involved.

 

 

 

MARKETPLACE TERM OF USE

 

READ CAREFULLY BEFORE DOWNLOADING THE APPLICATION.

THIS LICENSE AGREEMENT (THE “AGREEMENT”) STATES THE TERMS BETWEEN YOU ("YOU" OR "YOUR") AND HEWLETT-PACKARD COMPANY AND ITS SUBSIDIARIES (“HP”) FOR THE APPLICATION THAT YOU DOWNLOAD FROM HP’S WEBSITE (THE "APPLICATION"). BY DOWNLOADING, COPYING, OR USING THE APPLICATION YOU AGREE TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON "I AGREE" BELOW AND DO NOT DOWNLOAD, INSTALL, COPY, OR USE THE APPLICATION.

  1. Terms. This Agreement includes supporting terms and information referenced by HP, which may be Application license information, additional license authorizations, Application specifications, published warranties, supplier terms, open source software licenses and similar content (“Supporting Material”). Additional license authorizations are available at: http://www.hp.com/go/SWLicensing.
  2. Authorization. If You agree to this Agreement on behalf of another person or entity, You warrant You have authority to do so. This Agreement will be enforceable against You and any entity for which You download, install or use the Product.
  3. Consumer Rights. If You obtained the Application as a consumer, nothing in this Agreement affects Your statutory rights.
  4. License Grant. As long as You comply with this Agreement, HP grants You a non-exclusive non-transferable license to use one copy of the version or release of the Application only for Your organization’s internal purposes; such use is subject to any specific Application licensing information located in the Application product or its Supporting Material.

Your use is subject to the following restrictions, unless specifically allowed in Supporting Material:

You may not use Application to provide services to third parties.

You may not distribute, resell, share or sublicense Application to third parties.

You may not download and use patches, enhancements, bug fixes, or similar updates unless You have a license to the underlying Application. Such license does not give You a right to receive such updates.

You may not copy the Application or make it available on a public or external distributed network.

You may not allow access on an Intranet unless it is restricted to authorized users.

You may copy the Application for archival purposes or when it is an essential step in authorized use so long as You retain any product identification, trademark, copyright or other notices in the Application.

You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of the Application. If You have a right to do so under law, You must first inform HP in writing about such modifications.

You may not disclose to any third party performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Application.

You may not use the Application in a manner inconsistent with the authorizations and restrictions for the specific Application found at http://www.hp.com/go/SWLicensing.

  1. Remote Monitoring. Some Application may require keys or other technical protection measures and HP may monitor Your compliance with the Agreement, remotely or otherwise. If HP makes a license management program for recording and reporting license usage information, You will use such program no later than 180 days from the date it is made available.
  2. Ownership. No transfer of ownership of any intellectual property in the Application and any derivative works thereof will occur under this Agreement. All rights not granted are reserved.
  3. Disclaimer of Warranties. THE APPLICATION AND ALL RELATED COMPONENTS ARE PROVIDED "AS IS." TO THE FULL EXTENT PERMITTED BY LAW, HP AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY, LEGAL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY OTHER WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
  4. Intellectual Property Rights Infringement. HP will defend and/or settle any claims against You that allege that HP-branded Application as supplied under this Agreement infringes the intellectual property rights of a third party. HP will rely on Your prompt notification of the claim and cooperation with our defense. HP may modify the Application so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we will refund to You the amount paid for the affected product in the first year or the depreciated value thereafter. HP is not responsible for claims resulting from any unauthorized use of the Application.
  5. Limitation of Liability. HP’s liability to You under this Agreement is limited to the amount actually paid by You to HP for the relevant Application, except for amounts in Section 9 (“Intellectual Property Rights Infringement”). Neither You nor HP will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by its negligence; acts of fraud; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law.
  1. Redistributable Drivers. If you are downloading the  distributable copy of the Software drivers (“Redistributable Drivers”), Section 4 License Grant is modified by  adding the additional right to distribute the Redistributable Drivers in the programs you develop if you comply with the terms below:     

               License.

You may copy and distribute the object code form of the Software (“Distributable Code”) in programs you develop.

You may not modify the Software.

You may permit distributors of your programs to copy and distribute the Distributable Code as part of those programs.

               Distribution Requirements. 

                          For any Distributable Code you distribute, you must

add a named connector to the  Distributable Code to utilize the drivers  in your programs;

require distributors and external end users to agree to terms that protect the Distributable Code at least as much as this Agreement;

display your valid copyright notice on your programs; and

indemnify, defend, and hold harmless HP from any claims, including attorneys’ fees, related to the distribution or use of your programs.

                 Distribution Restrictions.

                         You may notalter any copyright, trademark or patent notice in the Distributable Code;

use  HP’s trademarks in your programs’ names or in a way that suggests your programs come from or are endorsed by HP;

include Distributable Code in malicious, deceptive or unlawful programs; or

modify or distribute the source code of any Distributable Code so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that the code be disclosed or distributed in source code form; or

others have the right to modify it.

  1. Termination. This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, Your rights under this Agreement terminate if You fail to comply with it. Immediately upon termination or expiration, You will destroy the Application and documentation and any copies, or return to them to HP. You may keep one copy of Application and documentation for archival purposes. We may ask You to certify in writing that You have complied with this section. Section 7 (“Disclaimer of Warranties”), Section 8 (“Intellectual Property Rights Infringement”), Section 9 (”Limitation of Liability), this termination provision, and Section 12 (“General”) each survive termination.

 

  1. General.

a. Assignment. You may not assign this Agreement without prior written consent of HP, payment of transfer fees and compliance with HP’s Application license transfer policies. Authorized assignments will terminate Your license to the Application and You must deliver Application and documentation and copies thereof to the assignee. You must first obtain the assignee’s agreement in writing to comply with this Agreement. You may only transfer firmware if You transfer associated hardware.

b. U.S. Government. If the Application is licensed to You for use in the performance of a U.S. Government prime contract or subcontract, You agree that, consistent with FAR 12.211 and 12.212, commercial computer Application, computer Application documentation and technical data for commercial items are licensed under HP’s standard commercial license.

c. Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the products to any such country. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

d. Audit. HP may audit You for compliance with the Application license terms. Upon reasonable notice, HP may conduct an audit during normal business hours (with the audit cost at HP’s expense). If an audit reveals underpayments then You will promptly pay to HP such underpayments. If underpayments exceed five (5) percent, You will reimburse HP for the audit costs.

e. Governing Law. This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflicts of law. You and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

f. Force Majeure. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.

g. Entire Agreement. This Agreement represents the entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If HP doesn’t exercise its rights under this Agreement, such delay is not a waiver of its rights.

  1. Australian Consumers. If you acquired the Application as a consumer within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 (Cth) then despite any other provision of this Agreement, the terms at this URL apply: http://www.hp.com/go/SWLicensing.


 

HP VERTICA MARKETPLACE APP CATALOG END-USER TERMS AND CONDITIONS

THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO YOUR USE OF THEHP VERTICA MARKETPLACE APP CATALOG (“APP CATALOG”), AND YOUR USE OF APPLICATIONS (EACH, AN “APPLICATION”) MADE AVAILABLE IN SUCH APP CATALOG. BEFORE USING, DOWNLOADING FROM OR OTHERWISE ACCESSING THE APP CATALOG OR ANY APPLICATION, CAREFULLY READ THIS AGREEMENT. THE APPLICATIONS PROVIDED THROUGH THE APP CATALOG ARE LICENSED BY THE PROVIDER OF THE APPLICATION (“APPLICATION PROVIDER”) TO YOU, THE ORIGINAL END USER, SOLELY FOR YOUR PERSONAL USE AS SET FORTH BELOW AND SUBJECT TO THE APPLICABLE END-USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE, DOWNLOAD OR OTHERWISE ACCESS THE APP CATALOG. USING, DOWNLOADING, OR OTHERWISE ACCESSING ANY PART OF THE APP CATALOG INDICATES THAT YOU ACCEPT THESE TERMS. YOU MUST BE AT LEAST 13 (THIRTEEN) YEARS OF AGE TO USE OR ACCESS THE APP CATALOG. IF YOU ARE AT LEAST 13 BUT UNDER THE AGE OF 18, YOU MUST HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO USE OR ACCESS THE APP CATALOG.

APPLICATION LICENSE AGREEMENT: Your use of each Application that you download through the App Catalog is governed by the terms of the Application License Agreement between you and the Application Provider (the “Application License Agreement”) set forth below. If the Application Provider provides an End-User License Agreement (“EULA”) with the Application, those terms shall supplement the Application License Agreement. As between you and the Application Provider, any additional or different terms in such EULA shall take precedence over the terms in the Application License Agreement.

HP’S ROLE IN PROVIDING APPLICATIONS: You agree that the license granted for each Application is a binding agreement between you and the Application Provider only. The Application Provider is solely responsible for that Application, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims relating to that Application. You acknowledge that HP is acting as agent for the Application Provider in providing each Application to you and is not a party to the license between you and the Application Provider. HP is not responsible for any Application, the content therein, or any warranties or claims that you or any other party may have relating to that Application.

You further acknowledge and agree that HP is a third party beneficiary of the Application License Agreement and, any EULA, if so provided. You acknowledge and agree that HP will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary of those agreements.

RESTRICTIONS: You agree that HP and/or third parties own all right, title and interest in and to the App Catalog and all Applications (including all copyrights and trademarks relating thereto). Each Application is licensed for use only for a single HP account, and you may not distribute or make the Application available over a network or for use with multiple devices. You may not modify or alter the Application in any way, and may only use the Application as expressly set forth above and as set forth in the applicable end-user agreement for the Application. You agree that you will not attempt to, or assist or encourage any other person or entity to circumvent, disable or modify any security technology or software that is part of the Application or is used on your HP device. Except as set forth above, HP and the Application Providers reserve all other rights in or to the Application. If applicable law permits you to copy or modify the Application, then you may copy and modify the Application solely to the extent, and for such purposes as, expressly permitted by applicable law. You agree that you will not engage in any activity that interferes with or disrupts the App Catalog or services available through Applications you have downloaded. You further agree that you will not use any Applications you download to interfere with or otherwise disrupt any servers, networks, websites or services.

HP HAS THE RIGHT TO MODIFY, CHANGE OR TERMINATE YOUR USE OF THE APP CATALOG OR APPLICATIONS FOUND IN THE APP CATALOG: HP reserves the right, at its sole discretion and at any time, to add, remove, disable access to, block, or modify the App Catalog, and to add, remove, disable access to, block, or modify remotely any Applications previously downloaded to your device from the App Catalog. HP may be required to take these actions due to changes in the obligations or restrictions from its third party licensors or partners, an Application Provider’s serious violation of its agreement with HP, or due to any governmental restriction or court order. HP may also impose limits on the use of or access to certain features or portions of the App Catalog or Applications downloaded from the App Catalog, in any case and without notice or liability. If HP removes, disables access to, or otherwise blocks you from accessing an Application, you will need to contact the Application Provider for further action.

HP HAS THE RIGHT TO MODIFY THESE TERMS: HP reserves the right to modify the terms of this Agreement at its sole discretion at any time. Any such modification will be effective upon HP notifying you prior to your continued use or access of the App Catalog. Your continued use of the App Catalog after such notice will constitute your binding acceptance of the Agreement as revised.

CUSTOMER SERVICE: HP does not provide support for Applications, and the Application Provider is responsible for providing such support. For any issues or questions concerning specific Applications, please contact the Application Provider.

CONTENT ACCESSED THROUGH APPLICATIONS: You acknowledge and agree that certain Applications may provide access to products, services, web content or other third-party materials (together, “Third-Party Content”) and that HP is not responsible for such Third-Party Content. HP makes no representations or warranties regarding such Third-Party Content.

REVIEWS: HP, in its sole discretion, may permit users to post reviews of Applications on the App Catalog. Such reviews reflect the opinions of the reviewers and not HP, and HP makes no representations as to the accuracy or completeness of the reviews. You agree that HP shall have no liability to you if you rely on the reviews to download or use an Application. HP reserves the right to, but has no obligation to, remove reviews that HP deems irrelevant or otherwise inappropriate for any reason. If you post a review, you hereby grant HP a perpetual, worldwide, fully transferable and sub-licensable, irrevocable, royalty-free license to make, use, sell, market, reproduce, create derivative works of, distribute, perform, and display the review in any manner and for any purpose. You acknowledge that your personally identifiable information may be associated with your review unless you post the review anonymously. If you post a review, you agree not to post, publish or transmit any material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another’s privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred or harm against any individual or group; (vi) infringes on another’s rights, including but not limited to any intellectual property rights; or (vii) violates, or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability.

CONSENT TO USE OF DATA: You agree that HP, its affiliates and designated agents may collect and use technical and related information, gathered in any manner, related to the App Catalog. This includes the use of Google Analytics or other analytics tools for the collection of anonymous usage information, which helps HP understand how visitors engage with the application catalog. HP, its affiliates and designated agents may use this information solely to improve its products or to provide customized services or technologies to you. HP will collect and use this information in accordance with its privacy policy and in accordance with applicable data protection laws. HP, its affiliates and designated agents may disclose this information to others, but not in a form that personally identifies you.

REVERSE ENGINEERING: You may not reverse engineer, decompile, or disassemble the App Catalog or any Applications downloaded from the App Catalog, except and only to the extent that such activity is expressly permitted by applicable law.

INDEMNIFICATION: To the maximum extent permitted by law, you agree to defend, indemnify and hold HP, its directors, officers, employees, affiliates and agents (including without limitation its parent company, Hewlett-Packard Company (“HP”) and its directors, officers, employees, affiliates and agents) harmless from and against any and all claims arising out of your breach of this Agreement, your use of the App Catalog, or your use of any Applications downloaded from the App Catalog.

WARRANTY AND DISCLAIMERS: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP CATALOG IS AT YOUR SOLE RISK AND THAT ACCESS TO THE APP CATALOG IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND OR NATURE. HP DOES NOT WARRANT THAT USE OF THE APP CATALOG WILL BE UNINTERRUPTED, FAULT-TOLERANT OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HP AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, CORRESPONDENCE WITH DESCRIPTION, SATISFACTORY QUALITY AND NON-INFRINGEMENT. HP MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE. ALL THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE IS PROVIDED "AS-IS," WITHOUT WARRANTIES OF ANY KIND BY HP.

LIMITATION OF LIABILITY: HP or Application Provider’s liability to you under this Agreement is limited to the amount actually paid by you to HP for the Application(s). Neither you nor HP nor its Application Providers will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit HP’s, Application Provider’s or your liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law.

GLOBAL TRADE COMPLIANCE: You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer Applications provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the Applications to any such country. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

TERM AND TERMINATION: This Agreement is effective until terminated. HP may terminate this Agreement in whole or as it applies to your use of any Application if you breach any of the terms of this Agreement. You may terminate it at any time by ceasing to use the App Catalog, provided that any terms relating to your use of each Application will survive unless and until you destroy all copies of such Application and related documentation. Some jurisdictions do not allow the termination of this type of Agreement, so the above provision may be limited in its application to you. In addition, HP reserves the right to modify, suspend, or discontinue the App Catalog (or any part or content thereof) at any time with or without notice to you, and HP will not be liable to you or to any third party should it exercise such rights.

GOVERNING LAW. This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflict of law. You and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

ENFORCEMENT OF AGREEMENT. HP reserves the right to takes any steps it believes to be reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that HP has the right, without liability to you, to disclose any information relating to your use of the App Catalog to law enforcement authorities, government officials, and/or a third party, as HP believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement.

ENTIRE AGREEMENT. This Agreement Represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.

Modifications to the Agreement will be made only through a written amendment signed by both parties. If HP doesn't exercise its rights under this Agreement, such delay is not a waiver of its rights.


 

APPLICATION LICENSE AGREEMENT

THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF EACH APPLICATION YOU DOWNLOAD FROM THE APP CATALOG (EACH, AN “APPLICATION”). BEFORE USING ANY APPLICATION, CAREFULLY READ THIS AGREEMENT.

The license granted hereunder is granted to you by the provider of the Application (“Application Provider”) and not by HP, Inc. (“HP”). If the Application Provider provides an End User License Agreement (“EULA”) with the Application, those terms shall supplement this Application License Agreement. As between you and the Application Provider, any additional or different terms in such EULA shall take precedence over the terms in this Application License Agreement.

You acknowledge and agree that HP is a third party beneficiary of this Application License Agreement and any EULA, if so provided. You acknowledge and agree that HP will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary of those agreements.

LICENSE GRANT: You are hereby granted a limited, non-transferable license to use the Application for a single HP account that you control. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not reverse engineer, decompile, or disassemble the Application, except and only to the extent that such activity is expressly permitted by applicable law. Any attempt to do so is a violation of the rights of the Application Provider. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by the Application Provider that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The Application Provider reserves all rights in and to the Application not expressly granted to you under this Application License Agreement.

CONSENT TO USE OF DATA: You agree that the Application Provider may collect and use technical and related information, gathered in any manner related to the Application. The Application Provider may use this information solely to improve its products or to provide customized services or technologies to you. The Application Provider may disclose this information to others, but not in a form that personally identifies you.

NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT ACCESS TO THE APPLICATION IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND OR NATURE. THE APPLICATION PROVIDER DOES NOT WARRANT THAT USE OF THE APPLICATION WILL BE UNINTERRUPTED, FAULT-TOLERANT OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, CORRESPONDENCE WITH DESCRIPTION, SATISFACTORY QUALITY AND NON-INFRINGEMENT. THE APPLICATION PROVIDER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE.

LIMITATION OF LIABILITY: Application Provider’s liability to you under this Agreement is limited to the amount actually paid by you to HP for the Application(s). Neither you nor Application Provider will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party's liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law.

GLOBAL TRADE COMPLIANCE: You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer Applications provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the Applications to any such country. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

TERM AND TERMINATION: The license is effective until terminated by you or the Application Provider. Your rights under this license will terminate automatically without notice from the Application Provider if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Application, and destroy all copies, full or partial, of the Application, including any accompanying documentation.

U.S. GOVERNMENT: span If the Application is licensed to You for use in the performance of a U.S. Government prime contract or subcontract, You agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Application Provider’s standard commercial license.

GOVERNING LAW: This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflicts of law. You and Application Provider agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

ENTIRE AGREEMENT: This Agreement represents the entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If Application Provider doesn't exercise its rights under this Agreement, such delay is not a waiver of its rights.


 

HP VERTICA INNOVATIONS PROGRAM AGREEMENT

This agreement (this “Agreement”) is entered into by and between Hewlett-Packard Company (“HP”) and you as an individual or, in the case of an entity, your authorized representative, on your behalf (“you”) as of the date you accept the terms of this Agreement (“Effective Date”). The terms and conditions of this Agreement apply to your participation in HP Vertica’s Innovations Program (“Program”).

  1. Products/Materials. Subject to the terms and conditions of this Agreement, HP shall provide to you at no charge the (a) prototypes of either new products or services or new releases of existing products or services (collectively the “Products”), and (b) materials related to the Products, including documentation, presentations or other media (collectively, the “Materials”).
  2. Term and Termination. The term of this Agreement (“Term”) begins on the Effective Date and is effective until terminated or in the case of a limited license, until expiration. Your rights under this Agreement terminate if you fail to comply with it. HP may terminate this Agreement immediately at any time in its sole discretion. Sections 2, 5, and 7-17 shall each survive expiration or termination of this Agreement.
  3. Installation. You shall comply with any installation requirements provided by HP.
  4. Product Use. Subject to the terms and conditions of this Agreement, HP grants to you a personal, non-transferable, non-sublicenseable, limited, revocable, non-exclusive royalty free license to internally use and test the Product and Materials during the Term for non-production testing and evaluation purposes only. Except where the terms of an open source license governing open source code which may be included in the Product and Materials specifically provides that the open source code cannot be licensed under other terms, terms of this Agreement shall govern with regard to that open source code; otherwise, your use of the Product and Materials is further subject to any third party license terms found in or accompanying the Products and Materials.
  5. Restrictions on Use. You shall not use the Product or Materials in any manner to produce, market, or support your own products or business. You acknowledge that the Product and Materials may contain bugs or defects. Your right to use the Products or Materials is specifically limited to the rights as described in this Agreement. Except as permitted by law, you shall not reverse engineer, disassemble, decompile, copy, distribute or modify the Products and Materials or provide access to the Products and Materials to a third party.
  6. Technical Support. HP is not required to provide you with technical support. Any technical support HP does provide to you shall be at HP’s sole discretion and is provided “As Is.”
  7. Title. All right, title, and interest to all intellectual property and related intellectual property rights with respect to the Product and Materials, including that which may be or become protectable by patent, copyright, trademark, trade secret, or similar laws, shall remain exclusively with HP or its suppliers. This Agreement confers no title or ownership and is not a sale of any rights in any current or future HP products or services.
  8. Return of Products. At the expiration or termination of this Agreement, You shall promptly return to HP or destroy all copies of the Product and/or Materials in Your possession. HP may ask You to certify in writing that You have complied with this section within ten business days of such request from HP.
  9. Disclaimer of Warranties. The Products and Materials are provided “As Is.” YOU ACKNOWLEDGE THAT THE PRODUCTS AND MATERIALS HAVE NOT COMPLETED HP'S FULL QUALITY ASSURANCE PROGRAM AND MAY HAVE ERRORS OR DEFECTS. HP MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS AND MATERIALS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
  10. Future Availability. HP may at any time and without notice choose not to release a final Product or Materials or, even if released, to alter prices, features, specifications, capabilities, functions, release dates, general availability, or other characteristics of the Product or Materials.
  11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER LAW, HP WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING LOST PROFITS, LOSS OF INCOME, REVENUE,  GOODWILL, REPUTATION OR SAVINGS, LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA OR SOFTWARE RESTORATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES, ARISING UNDER THIS AGREEMENT.
  12. Intellectual Property Rights. No rights in copyright, patents, trademarks, trade secrets, or other intellectual property rights are granted by either party to the other except as expressly provided under this Agreement. You agree that HP shall have, and you shall assign to HP, all right, title and interest in and to any feedback, Product test results or suggestions regarding the Product or Materials (“Feedback”). HP at its discretion, may choose not to use or implement any Feedback in the Product or Materials. You shall not register or use any mark or internet domain name that contains HP’s trademarks.
  13. Confidentiality of Information. You acknowledge and agree that all information pertaining to the Product and Materials are HP’s proprietary and confidential information. As such, you shall protect the confidentiality of such information until such information is made public by HP, using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of such information as parties use to protect their own confidential information of a like nature. You shall not make public any information, reports or test results obtained pursuant to this Agreement.
  14. Assignment. You may not assign this Agreement without prior written consent of HP. Authorized assignments will terminate your license. You must first obtain the assignee’s agreement in writing to comply with this Agreement.
  15. Governing Law. This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflicts of law. You and HP agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
  16. Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. You agree not to export, import or otherwise transfer Products and Materials provided under this Agreement, except as authorized under this Agreement and that you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the Products and Materials to any such country. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.
  17. Entire Agreement. This Agreement represents the entire understanding with respect to the Products and Materials and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If HP doesn’t exercise its rights under this Agreement, such delay is not a waiver of its rights. In the event any provision of this Agreement is held invalid or unenforceable the remainder of the Agreement will remain enforceable and unaffected thereby.