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These terms govern the use of the Website's services and facilities by you, the User. They are subject to the AUP unless otherwise indicated, and may be supplemented by additional terms where indicated, in relation to specific services and features offered on the Website.
The following terms are defined as shown below for the purposes of your access to and use of the Website and any of its services and facilities, unless otherwise clearly indicated:
|Affiliate:||Any entity controlled by, controlling, or under common control with a party to the User Agreement.|
|APIs:||Application programming interfaces made available by HPE to Developers.|
|Apps:||Applications in the form of software, services or combined solutions which are produced by Developers using the facilities of the Website.|
|AUP:||The Acceptable Use Policy accessible here.|
|Developer:||A User who develops Apps using the facilities of the Website.|
|HPE:||Hewlett-Packard Enterprise Company and its Affiliates, as applicable in the context.|
|HPE Services:||Any services provided by HPE to you via the Website, including HPE Software provided as part of an HPE Service. Specific offerings are described in detail on the relevant web pages of the Website.|
|HPE Software:||Any software provided by HPE to you via the Website. Specific software products are described in detail on the relevant web pages of the Website.|
|Website:||This website (http://www.havenondemand.com) and its facilities.|
|Third Party Content:||Any content (including text, information, hyperlinks, software, graphics, audio or video material) that originates from third parties and is made accessible by User via the Website, excluding User Content.|
|User Agreement:||The agreement between you and HPE governing your access to and use of the Website and your receipt of any HPE Services, on the applicable terms set out in the relevant parts of the Website.|
|User Content:||Any content (including text, information, hyperlinks, software, graphics, audio or video material) that is provided by or on behalf of User to the Website, or to HPE or other users of the Website.|
1.Structure of User Agreement The User Agreement is subject to the AUP, these Terms and applicable service descriptions available on the Website, in that order of precedence.
2.Services HPE Services are described on the relevant web pages of the Website, together with any specific service levels, service quality commitments and User responsibilities. From time to time we may also make available HPE Services and APIs on a "preview" or "early access" basis, with no commitment to launch them as official offerings.
3.Service and Software performance
3.1We provide the HPE Services in line with generally recognized practices and standards for the type of services in question. You will provide prompt notice of any service concerns and HPE will re-perform any service that fails to meet this standard, but HPE does not warrant that HPE Services will be uninterrupted or error-free.
3.2HPE's ability to deliver HPE Services may depend on your reasonable and timely cooperation and the accuracy and completeness of any information required from you.
3.3HPE warrants that HPE Software products will conform materially to their specifications and be free of malware at the time of delivery. This warranty will begin on the date of delivery and will last for ninety (90) days. When we receive a valid warranty claim for an HPE Software product, HPE will either repair the relevant defect or replace the product. If HPE is unable to complete the repair or replace the product within a reasonable time, User will be entitled to a full refund of any HPE Service rendered unusable as a result.
3.4Any HPE Service quality, support or warranty commitments will not apply to claims resulting from:
a.Non-compliance with the AUP;
b.improper use of HPE Services, including failure to follow reasonable usage instructions;
c.failure or functional limitations of any software, service or system not provided by HPE through the Website;
d.malware (e.g. virus, worm, etc.) not introduced by HPE; or
e.any cause beyond HPE's reasonable control.
3.5The User Agreement states all remedies for warranty claims. To the extent permitted by law, HPE disclaims all other warranties.
4.1Developers are granted a non-exclusive, non-transferable, worldwide license to:
a.use the APIs to develop and test Apps and to incorporate HPE Services into the functionality of the Apps;
b.reproduce and distribute Apps to your customers (directly or via resellers) incorporating HPE Services;
c.reproduce and make available to your customers Apps incorporating HPE Services for demonstration, test and training purposes.
4.2Where customers using Developer's Apps are given access to the Website and / or HPE Services as part of any App's functionality, Developers will take reasonable steps to ensure that those customers abide by the AUP and that access to HPE Services is strictly within the functional scope of the APIs used.
4.3Developers will ensure that any Apps which incorporate HPE Services, and any accounts which you set up for your Apps customers, are appropriately secure and used only for authorized purposes.
5.Intellectual Property Rights No transfer of ownership of any intellectual property will occur under the User Agreement.
6.Indemnification HPE will defend and pay final awards of damages and approved settlement payments for third party claims against User alleging that HPE Services or the use of HPE proprietary technology through the Website infringes intellectual property rights of a third party (excluding the use or provision of open source software). HE is not responsible for claims resulting from unauthorized use of the HPE Services. User will defend and pay final awards of damages and approved settlement payments for third party claims (including IP infringement claims) against HPE concerning: (i) acts or omissions of User, its Affiliates, and their respective end-users, employees, contractors or agents related to the use of or access to HPE Services or the Website; and (ii) any rights granted by User to HPE for the purpose of providing HPE Services. The indemnifying party will rely on prompt notification of the claim by the other party, who will cooperate with defense of the claim.
7.Confidentiality Information exchanged between us 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 the User Agreement, and shared with third parties who have 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 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.
8.Privacy and Information Security
8.2For Users in the European Economic Area (EEA): User and HPE will comply with their obligations as a controller and processor, respectively, as these terms are defined by EU Directive 95/46/EC, unless otherwise defined by applicable data protection legislation. Specific obligations are set out in the Additional Privacy Terms, which are part of the User Agreement and take precedence over any conflicting terms.
8.3Security Information about the security controls for HPE Services is available at: Security Overview.
8.4 Global Trade compliance If User exports, imports or otherwise transfers products and/or deliverables provided under the User Agreement, User 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 the User Agreement to the extent required by laws applicable to either party.
9.Limitation of Liability Each party's aggregate liability under the User Agreement is limited to the greater of US $1,000,000 or charges payable by User for the HPE Services that are the subject of the claim for the 12-month period immediately preceding the act or omission giving rise to the claim. Neither party will be liable for lost revenue or profits, downtime costs, loss or damage to content, or indirect, special, consequential or punitive damages. There is no limit on User's payment obligations, third party claims subject to indemnification, or either party's liability for: unauthorized use of intellectual property; death or bodily injury caused by their negligence; fraud; willful abandonment of the User Agreement or breach intended to cause harm, or any liability that may not be excluded or limited by law. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control. Performance is not excused for payment obligations.
10.Governing law and jurisdiction The User Agreement is governed by New York state law, and the courts of that locale will have jurisdiction; however, HPE may also bring suit for payment in the country where the User is located. The choice of law described here excludes applicable conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
11.Termination and Service changes
11.1Either party may terminate the User 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 the User Agreement and cancel any unfulfilled obligations. Any terms in the User 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.
11.2Specific HPE Services may be subject to additional terms regarding duration, expiry and termination rights. These terms will be provided on the relevant pages of the Website where the HPE Services are made available to User for subscription.
11.3From time to time we may change HPE Services, including APIs and the functionalities of the Website. For material changes, we will provide a minimum of 6 months' notice by appropriate communication on the Website and via e-mail after the new version has been made available to the User or Developer and before the removal of any prior version.
11.4We may also decide to end our production and support of particular HPE Services (including APIs), and will provide a minimum of 12 months' notice by appropriate "end of life" communication on the Website.
12.Entire Agreement The User Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist.
13.Prices and Taxes Prices will be as quoted in writing by HPE or, in the absence of a written quote, as set out on the Website 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.
14.Invoices and Payment For transactions which are invoiced, User 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 User fails to make payments when due. For online transactions, payments will be processed via the Website payment page and User will submit up to date credit or payment card details as prompted. If card payment is unsuccessful, User will be given 72 hours to re-submit payment successfully, failing which your account may be disabled.
a.The terms "controller", "data subject", "processor", "process", "processed", "processing", and "personal data" used here shall be as defined in European Directive 95/46/EC.
b."User Personal Data" means personal data of which User or its Affiliates are the controller and which HPE processes in the course of providing HPE Services.
a.User appoints HPE as a processor of User Personal Data. User 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 User Personal Data.
b.HPE shall only process User Personal Data as required to provide HPE Services and in accordance with the User's written instructions (which unless otherwise stated will be the instructions of a general nature set out in the User 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.
c.HPE has implemented the HPE Services technical and organizational measures to protect User Personal Data against accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the havenondemand.com website or can otherwise be provided on User's request. These include:
i.Physical access controls
iii.Access Limitation Controls
d.HPE will ensure that all employees involved in the processing of User 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.
e.Where the Website identifies categories of User Personal Data or other User-provided data that are to be returned to User upon termination, HPE will supply such data to User in the agreed format and will delete from HPE's own systems any remaining copies of such User Personal Data or other data, unless legislation applicable to it prevents it from doing so.
f.HPE will within five (5) business days of receipt, refer to User any queries from data subjects in connection with User Personal Data, for User to deal with.
g.HPE will on written request of User promptly amend or delete any User Personal Data to the extent that User is not able to amend or delete the data itself.
h.User Personal Data will be transferred to HPE's parent company, Hewlett Packard Enterprise Company in the United States of America, and onward to other Affiliates and third party subcontractors located outside the EEA and Switzerland who support HPE Services, a list of which is available upon request.
i.User acknowledges that HPE is a party to the United States Safe Harbor program and certified under the EU-US and/or Swiss-US Safe Harbor framework ("Certification"). For as long as the EU-US and Swiss-US Safe Harbor Frameworks are recognized by the European Union as a legitimate basis for the transfer of Personal Data from the European Union or Switzerland to a certified entity located in the United States of America, HPE warrants that:
i.Hewlett-Packard Company is and shall remain certified under the Certification;
ii.the processing of User Personal Data which originates from the EEA and Switzerland is within the scope of the Certification; and
iii.it shall notify User if Hewlett Packard Company does not renew or loses the Certification, or amends the Certification so that the processing of User Personal Data which originates from the EEA and Switzerland is no longer within the scope of the Certification.
j.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 User Personal Data. The relevant information and additional contract terms will be provided to User on request.
k.HPE will ensure that any Affiliate or third party subcontractor involved in processing User 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 here and appropriate to the nature of the processing involved.