Terms of Service updated April 6, 2017
Terms of Service
READ THESE TERMS THOROUGHLY. BY ACCEPTING THESE TERMS YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH HEWLETT PACKARD ENTERPRISE COMPANY (HPE).
1. Acceptance of terms
By using HPE’s Cloud Cruiser online and offline products and services (collectively, “the Service”), provided by HPE, (collectively, “HPE”, “We” or “Us”) you agree to be bound by the following Terms of Service (“TOS”). We may update the TOS from time to time without notice. The terms of this TOS may not be amended, altered or changed by an purchase order or other instrument submitted by you, whether formally rejected by HPE or not. You can review the most current version of the TOS at any time at: https://www.cloudcruiser.com/TOS/.
If you are entering into this agreement on behalf of a company or other legal entity (the “Company”), you represent that you have the authority to bind the entity to these terms and conditions, in which case the terms “you” or “your” shall refer to the entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Service. You acknowledge and agree, (both on behalf of yourself and your Company) that, all use of the Service, via the HPE user interface or otherwise, requires a fully paid and HPE authorized subscription to the Service (the “Authorized Users”). An Authorized User means an individual who (i) accesses the Service or (ii) has an email account utilized in the Service (whether a user, administrator or recipient of generated reports/analytics/information. The Authorized User quantity associated with your purchase is shown on your Order Form and is allocated by HPE on an individual basis. Each individual Authorized User within a subscribing entity must have an independent (unshared) password and email address authorized by HPE. Additional paid users may be authorized to use the Service under the same account (including, without limitation, the ability to authorize other additional users, as applicable) via purchase of additional Authorized User packs from HPE. You acknowledge and agree that (i) HPE is authorized (but not obligated) to act on behalf of, and in accordance with, any instructions or requests made by Authorized Users, and (ii) HPE shall not be liable in any manner whatsoever with respect to (A) following instructions or requests made by Authorized Users, or (B) for any actions taken by such Authorized Users in connection with the Service.
You understand and agree that the Service may include certain communications from HPE, such as service announcements, administrative messages and advertising of additional products and services, and that these communications are considered part of Service and that you will not be able to opt out of receiving them. Changes and features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided “as is” and that HPE assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. You are responsible for obtaining access to the Service, which access may involve third-party fees (such as Internet Service Provider charges). In addition, you must provide and are responsible for all equipment necessary to access the Service.
Without HPE’s written consent: (i) you may not access the Service for purposes of monitoring its performance, availability, or functionality, or for any other benchmarking, competitive or disparaging purposes, (ii) make the Service available to others over the internet or any other publicly accessible network or technology, (iii) publish or disclose to any third-party comments, reviews or insights, and (iv) access the Service if you are a direct competitor of HPE or otherwise intend to use Service in a manner other than its reasonable intended use.
If you are an evaluation, trial or pilot user your access to the Service is granted at HPE’s sole discretion and is for customer pre-purchase evaluation, trial or pilot usage only, as applicable. The evaluation term period and access shall be determined solely by HPE and may be terminated or restricted at any time with or without notice (without any liability whatsoever).
2. Your account
In consideration of your use of the Service, you represent and warrant that (i) you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction, (ii) your use of the Service does not violate any applicable law or regulation, and (iii) you are human. Accounts registered by “bots” or other automated methods are not permitted. You also agree to: (a) provide true, accurate, current and complete information about yourself (and your Company, if applicable) as prompted by the Service’s registration form (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or HPE has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, HPE has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You may receive a password and account designation upon completing the Service’s registration process. In such event, you are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify HPE of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. HPE cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this Section 2.
We will begin billing you for subscription fees corresponding to your subscription plan, plus any applicable tax, at the beginning of your subscription period. We will bill the subscription fee plus any applicable tax to you.
By using the Service, you are expressly agreeing that we are permitted to bill you a subscription fee, any applicable tax and any other charges you may incur in connection with your use of the Service. Other charges may include changes you request with respect to the number of data collectors (“Collectors”) and/or the number of Authorized Users associated with the Service. The standard Service subscription is limited to five (5) Authorized Users (which is one “Authorized User Pack”). You may purchase additional Authorized User Packs at any time. You are responsible for monitoring the number of Authorized Users accessing the Service. You are responsible for payment of any unauthorized users of the Service (i.e. users above the Authorized User quantity for which you have paid). We will bill you for the number of Authorized User packs necessary to bring you into compliance with these terms, including your unauthorized use in arrears.
We will automatically bill you each subscription/billing period on the calendar day corresponding to the commencement date of the Service. Except as otherwise set forth in Section 12 (Termination and cancelation), fees and charges are nonrefundable, except that refunds may apply to prepaid subscription fees for which proper notice of termination has been provided to and accepted by HPE pursuant to Section 12 (Termination and cancellation). Refunds will not apply in cases where you have elected to downgrade service levels or otherwise remove any paid component or feature. If you elect to upgrade your service level or otherwise add any paid component or feature, we will pro-rate the amount due based on the number of days remaining in your subscription/billing period; provided, however, that any such proration shall be based on your service level or paid components or features in existence immediately prior to your election to upgrade or add paid components or features. We may change the fees and charges in effect or add new fees and charges from time to time. We will inform you of any increase or addition to existing fees and we may offer you a grace-period in which your fees will not increase for a certain period of time. If you do not accept the increase or addition to the existing fees, you may elect to terminate your account during the then current subscription/billing period and you shall not be liable for such fee increase after the applicable subscription/billing period; however, any later renewal of service will be subject to the increased fee structure.
If you change your service level (downgrade it), you may cause the loss of Content or features for your account. HPE does not accept any liability for such loss. We do not provide refunds or credits for any partial subscription periods or any feature or component that you have paid for but not used.
In connection with your purchase and/or use of the Service you may be subject to taxes, including, without limitation, sales and use taxes, by any authority that has jurisdiction to impose such taxes. You agree that the obligation and payment of any such taxes shall be your sole and absolute responsibility, and you agree to indemnify HPE pursuant to Section 6(vi) to the extent that HPE incurs any obligations or other liabilities in connection with such taxes.
For free trial users, you will not receive a notice from us that your free trial has ended or that your paying subscription has begun.
4. Content; Data
You understand that all information, content, data, text, or other materials, including, without limitation, messages and support tickets (collectively, “Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. Content shall not include your System Data (as such term is defined below). You, and not HPE, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. HPE does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, objectionable or illegal in your jurisdiction. Under no circumstances will HPE be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to transmit, upload, store, maintain, distribute or otherwise use Content through the Service that violates any third party rights, is false or fraudulent, defamatory, obscene or otherwise violates the rights of any third party, including, without limitation, taking any of the following actions:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, under any applicable laws;
- harm minors in any way;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- disguise the origin of any Content transmitted through the Service;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any applicable law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other form of solicitation;
- upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- act in a manner that negatively affects other users’ ability to use the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local, state, national or international law;
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
You acknowledge that HPE may or may not pre-screen Content and Data, but that HPE and its designees shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse, or move any Content or Data that is available via the Service. Without limiting the foregoing, HPE and its designees shall have the right to remove any Content or Data that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content and Data, including any reliance on the accuracy, completeness, or usefulness of such Content and Data. In this regard, you acknowledge that you may not rely on any Content submitted to HPE.
You acknowledge, consent and agree that HPE may access, preserve and disclose your account information, Content and Data if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any applicable legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of HPE, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content and Data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
5. Ownership and License of Content and Data; Data Security
HPE does not claim ownership of Content or data that you submit or make available for inclusion on or through the Service. However, notwithstanding any other provision of the TOS, with respect to Content or data submitted through or via the Service, or which is made available for inclusion on publicly accessible areas of the Service, you grant HPE a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
The term “System Data” shall mean all data and information about your systems and usage thereof (including, without limitation, the systems of your own clients, subcontractors and users, as applicable, and their respective usage thereof), which is either provided in connection with, uploaded to, or managed by, the Service. For the purpose of providing the Service, you authorize HPE to collect such System Data by utilizing one or more HPE Collectors, which consists of a software interface that is connected to your Cloud or Infrastructure specific element. Such System Data is owned by you and shall not be deemed to be Content; provided, however, HPE reserves the right to collect, analyze, combine and utilize Non-Identifiable Data (as such term is defined below) from the Service for internal and commercial purposes including without limitation, research, benchmarking, sharing, developing enhancements to the Software and/or creating, selling, and licensing other HPE products or services. The term “Non-Identifiable Data” shall mean System Data which has been compiled, extracted, modified, anonymized or aggregated in such a manner that the individual source of the data cannot reasonably identify You by name. You grant HPE a worldwide, royalty-free, fully-paid, perpetual, irrevocable, transferable and fully sublicensable right to use such Non-Identifiable Data in any manner, including, without limitation, for commercial purposes.
The Data Privacy and Security provisions set forth at http://www.cloudcruiser.com/datasecurity and are hereby incorporated by this reference in their entirety.
6. Special admonitions for international use
Recognizing the global nature of the Internet, you agree to comply with any and all applicable local, state, national or international laws and regulations regarding online conduct, acceptable Content and your use of the Service. Specifically, you also agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country or jurisdiction in which you reside.
7. Mutual indemnification
HPE agrees to indemnify and hold you and your parent (if any), subsidiaries, affiliates, officers, directors, managers, stockholders, members, agents, attorneys, employees, partners, licensors and other representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of, or in connection with, (i) HPE’s violation of U.S.-registered patents, copyrights and trademarks (except to the extent caused by your Content, Data or use of the Service in violation of this TOS), (ii) HPE’s gross negligence or intentional misconduct, and (iii) HPE’s violation of applicable U.S. law.
The indemnifying party (the “Indemnifying Party”) shall only be required to indemnify the other party (the “Indemnified Party) if: (i) the Indemnified Party promptly notifies the Indemnifying Party of a claim; (ii) the Indemnified Party provides the Indemnifying Party with full control of the defense and settlement of every such claim; (iii) the Indemnified Party reasonably cooperates with the Indemnifying Party in such defense and settlement, and (iv) the Indemnified Party does not settle any such claim or suit without the Indemnifying Party’s prior written consent. The Indemnified Party may participate in the defense and settlement of any claim with counsel of its choice at its own expense provided that the Indemnifying Party shall continue to have sole control of such defense or settlement.
8. No resale of Service
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service unless you otherwise have a written agreement with us which specifically grants you such right(s).
9. General practices regarding use and storage
You acknowledge that HPE may establish general practices and limits concerning use of the Service, including, without limitation, the maximum size of the Content, the number of days that Content will be retained by the Service, the maximum disk space that will be allotted on HPE’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that HPE has no responsibility or liability for the deletion or failure to store any Content, Data and other communications maintained or transmitted by the Service. You acknowledge that HPE reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that HPE reserves the right to modify these general practices and limits from time to time.
10. Modifications to Service
HPE reserves the right at any time and from time to time to modify, update or temporarily suspend the Service (or any part thereof) with or without notice. Except with respect to a pro rata refund for any prepaid period, you agree that HPE shall not be liable to you or to any third party for any such modification or temporary suspension of the Service.
Unless you otherwise provide a written request to HPE, you agree to be identified as a customer of HPE and you agree that HPE may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in HPE’s marketing materials and web site.
12. Termination and cancellation
You agree that HPE may upon written notice (including notice by email or other electronic means) terminate your HPE account and access to the Service for cause. In addition, either party may terminate the Service upon ninety (90) days written notice for convenience purposes. If for cause, such termination may be made immediately upon notice to you with cause, as determined in HPE’s reasonable discretion. For illustrative purposes only, cause shall be deemed to include, but not be limited to: (a) breaches or violations of the TOS or other incorporated agreements or guidelines; (b) requests by law enforcement or other government agencies; (c) a request by you (self-initiated account deletions); (d) unexpected technical or security issues or problems; (e) extended periods of inactivity; (g) engagement by you in fraudulent or illegal activities; and/or (g) nonpayment of any fees owed by you in connection with the Service. HPE shall not be liable to you or any third party in any other manner with respect to any termination of your account, or access to the Service. Upon termination you agree to immediately cease use of the Service and access to the Service may be terminated. To the extent you hold any copies of the Software and/or HPE Confidential Information (as such term is defined below) you shall either destroy (or permanently erase) all such copies or return them to HPE. Sections 2 through 6, 10 through 16, 19 and 20 through 24 of this TOS shall survive any termination of this Agreement.
During the Service and through the time thirty (30) days after termination you may export your Data from the Service via the HPE user interface. Thereafter HPE shall destroy such Data in accordance with its commercially-reasonable document backup and archival policy; provided, however, that in no event shall HPE be liable to you for loss of your Data if you fail to export your Data within thirty (30) days of termination.
13. Dealings with third parties
Your correspondence or business dealings with, or participation in promotions of, any third parties found on or through the Service (if any), including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that HPE shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because HPE has no control over such sites and resources, you acknowledge and agree that HPE is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that HPE shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
15. HPE’s proprietary rights
You acknowledge that HPE solely and exclusively owns all copyrights, trademarks, patents, trade secrets and/or other intellectual property rights (“IP Rights”) in and to (i) software provided to you by HPE in connection with the Service including any updates, upgrades, revisions or error or bug fixes of such software provided to you by HPE at its sole option and discretion, (ii) any accompanying documentation provided by HPE, and (iii) any software used in connection with the Service ((i), (ii) and (iii) collectively, the “Software”). You are not granted any rights in the Software other than the license rights expressly set forth herein. All rights in the Software not expressly granted in this Agreement are reserved to HPE.
You acknowledge and agree that the Service and the Software contain proprietary and confidential information, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”) that is protected by applicable intellectual property and other laws. You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than using the Service as authorized herein. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and law. You also acknowledge and agree that a breach of this provision will cause irreparable harm to HPE for which it will have no adequate remedy at law, and therefore it shall be entitled to obtain injunctive relief to restrain violations of this provision, in addition to any other remedies it may have at law or equity. Except as expressly authorized by HPE or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
HPE grants you a personal, non-transferable, non-sublicenseable and non-exclusive right and license during the subscription term to use the object code of its Software on your computing devices for your internal business purposes in accordance with any documentation provided by HPE, and subject to the terms and conditions of this Agreement. You shall not (and shall not allow any third party, including employees and contractors), to: (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Software; (d) modify , adapt, create a derivative work of, merge or translate any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by HPE (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of license key or copy protection used by HPE in connection with the Software, or use the Software together with any authorization code, license key, serial number, or other copy protection device not supplied by HPE; (g) use the Software as a component of, as a base for, or to develop a product which is competitive with any products and services offered by HPE; (h) use the Software to develop a product that converts any HPE file format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of HPE; or (i) use unauthorized license keys, keycode(s), password(s) or distribute or publish keycode(s) except as may be expressly permitted by HPE, respectively, in writing. You may not copy, rent, lease, sell, sublicense, assign, loan, time-share or otherwise transfer or distribute copies of the Software, except as expressly set forth in this Section 15. Use of any additional Collectors not intended for or associated with the Software is not licensed or permitted under this Agreement. You agree not to access the Service by any means other than through the interface that is provided by HPE for use in accessing the Service.
16. Disclaimer of warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
HPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HPE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
17. Limitation of liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT HPE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, PARTNERS, LICENSORS AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, ARISING FROM THE USE OR THE INABILITY TO USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, ISSUES CAUSED BY HPE’S THIRD-PARTY HOSTING PROVIDER), THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE, THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, LOSS OR CORRUPTION OF DATA BEYOND HPE’S REASONABLE CONTROL (INCLUDING, WITHOUT LIMITATION, ANY ISSUES CAUSED BY HPE’S THIRD-PARTY HOSTING PROVIDER), REGARDLESS OF LEGAL THEORY, EVEN IF HPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT HPE WOULD NOT PERMIT YOU TO USE THE SERVICE OR SOFTWARE ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THE TOS (OR OTHER DOCUMENT REFERRENCED HEREIN) SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HPE’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO HPE FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
18. Exclusions and limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU.
19. Trademark information
The Cloud Cruiser and HPE logo trademarks and service marks and other HPE logos and/or Cloud Cruiser product and service names are trademarks of HPE.
20. Proprietary Rights-Contracts with Certain U.S. Government Agencies.
The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. 2.101 (Jan. 2011), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212, 48 C.F.R. 227.7202, and 48 C.F.R. 12.211, respectively. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users’ rights to use, modify, reproduce, release, perform, display, or disclose the Software are as provided by this Agreement. This clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Licensed Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
21. Export law assurances
You may not, and may not allow or enable any third-party, to use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which HPE was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or Unverified List or Blocked Persons List or Debarred List on Nonproliferation Sanctions List. By using the Service, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
Without limiting the foregoing, you acknowledge that you are not a person or entity prohibited from receiving U.S. exports or a person or entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. You further acknowledge that (i) You are not located in, and (ii) are not a national of Cuba, Iran, Iraq, Kosovo (Serbian controlled), Libya, Montenegro, North Korea, Serbia, Sudan, Syria, any Taliban-controlled areas of Afghanistan, or any other U.S.- embargoed country or area. Restricted countries currently include, but may not be limited to: Cuba, Iran, Iraq, Libya, Kosovo (Serbian controlled), Montenegro, Serbia, North Korea, Sudan and Syria and any Taliban-controlled areas of Afghanistan, or any other U.S.-embargoed country or area.
You agree not to export, re-export, or otherwise disclose the Software and/or technical data to any national of the above-listed countries, or to any other person or entity prohibited from receiving U.S. exports or to any entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. Without limiting any of the foregoing, if You export the Software or technical data from the country in which you first received it, you assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be.
22. Audit rights; License compliance reporting
HPE reserves the right to run reasonable periodic license compliance reports to ensure accuracy and appropriate use of your license(s) including, without limitation, reviewing your usage and access including IP addresses etc. Given reasonable notice, HPE further reserves the right to physically audit your license utilization, during regular business hours, in order to ensure compliance with the TOS. If such inspections or audits disclose that you have accessed or permitted access to the Service in a manner that is not permitted under the TOS, then you shall be liable for the reasonable costs of the audit in addition to any other fees, damages and penalties HPE may be entitled to under the TOS and applicable law.
23. Third-party code
The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of the TOS with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
HPE will provide Authorized Users with the level of support for the Service as set forth at http://www.cloudcruiser.com/cc16support, (“Support Terms”) and are hereby incorporated by this reference in their entirety.
25. Force Majeure
If by reason of labor disputes, strikes, lockouts, riots, war, acts of terrorism, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, appropriation or other causes beyond the reasonable control of HPE, HPE is unable to perform in whole or in part its obligations as set forth in this TOS, then HPE shall be relieved of those obligations (other than the payment of money) to the extent it is so unable to perform and such inability to perform shall not make HPE liable to you. HPE shall not be liable for any loss, injury, delay or damages (other than failure to receive monies when due) suffered or incurred by you due to the above causes.
26. General information
Entire Agreement. The TOS constitute the entire agreement between you and HPE and govern your use of the Service, superseding any prior agreements between you and HPE with respect to the Service. It may be modified only in writing executed by an authorized representative of HPE. No HPE dealer or sales representative is authorized to make any modifications, extensions or additions to this TOS. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other HPE services, affiliate services, third-party content or third-party software.
Choice of Law and Forum. The TOS and the relationship between you and HPE shall be governed by the laws of the State of California excluding (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980; and (v) the Uniform Computer Information Transactions Act (and all successor or amended acts that are or may be adopted in any jurisdiction). You and HPE agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Los Santa Clara, State of California regardless of (i) your world-wide physical location, or (ii) the jurisdiction where you purchased or use the Service.
In the event of a merger (by operation of law or otherwise), reorganization, consolidation or sale of all or substantially all of HPE’s assets, HPE may assign the Service and the TOS without notice to you or your consent.
Waiver and Severability of Terms. The failure of HPE to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect.
No Right of Survivorship and Non-Transferability. You agree that your HPE account is non-transferable and non-assignable without written permission from HPE.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.