This HPE Products Evaluation Agreement (“Agreement”) states the terms between you (“You” or “Your”) and Hewlett Packard Enterprise Company and its subsidiaries (“HPE”) for the Products downloaded from HPE’s website. By downloading, copying, or using the Products, 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 Products.
1. Products. HPE shall provide the object code version of generally available software products (“Software”) as set forth in the chart below. HPE may also make available related supporting terms and information referenced by HPE for the Software which may include documentation, license information, additional license authorizations, product specifications, published warranties, supplier terms, open source software licenses and similar content (“Supporting Material”) for the sole purpose of enabling You to internally test and evaluate the Products in a test environment (“Use”). For avoidance of doubt, “Products” includes Software and Supporting Material.
2. Authorization. If You agree to this Agreement on behalf of another person or entity, You warrant that You have the authority to do so. This Agreement shall be enforceable against You and any entity receiving the Product for which You download, install, or use the Product as the date of receipt of the Product (“Effective Date”).
3. License and Ownership. HPE hereby grants You a non-exclusive, non-transferable license to Use the Products, royalty-free, for the Term and by the number of authorized users as specified in the chart below. You may make one backup or archival copy of the Product. All worldwide right, title, and interest to the Products (including any corrections, bug fixes, enhancements, updates, or other modifications thereto, whether or not made by HPE), any third party products included in such Product (“Third Party Product”), and all intellectual property rights in and to them, are and will remain the exclusive property of HPE and its Third Party Product licensors.
4. Restrictions on Use. Except as expressly set forth herein, no intellectual property license, and no other license or rights of any kind is granted. You shall not use the Product to produce, market, or support Your own products. Furthermore, Your Use is subject to the following restrictions unless specifically allowed in the Supporting Material:
o You may not distribute, sell, rent, lease, loan, provide, share, sublicense, or otherwise transfer all or any portion of the Products.
o You may not reproduce, modify, translate, reverse engineer, disassemble, decrypt, decompile, or make derivative works of, the Products or otherwise attempt to gain access to the source code of all or any portion of the Products. If You have a right to do so under law, You must first inform HPE in writing about such modifications.
o You may not use the Products in any manner other than that described in this Agreement and the Supporting Material.
o You may not display, disclose, or make available the Products to any person other than You and Your employees.
o You may not copy Products or make it available on a public or external distributed network.
o You may not allow access to the Products on an intranet unless it is restricted to authorized users.
o You may make one copy of the Products for archival purposes when it is an essential step in authorized Use.
o You may not use Products for third-party training, commercial time-sharing, or service bureau use.
o You may not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in the Products.
o You may not use or access any Third Party Product that is included in the Products, or provided to You by HPE, separately from the Products.
o You may not cause or permit any third party to do any of the foregoing.
5. Term. The term of this Agreement (the “Term”) is specified in the chart at the bottom of this Agreement. The Term will commence on the Effective Date and shall continue for: (i) the express number of days indicated for the specific Product licensed or (ii) until Your purchase of and payment for an appropriate license to use the Products, whichever is earlier. Unless You purchase and pay for an appropriate license to use the Products, upon the expiration of the Term or any earlier termination of this Agreement: (i) all licenses granted to the Products hereunder shall cease; (ii) You shall promptly remove or erase all intangible copies of the Products; and (iii) You shall promptly return all tangible materials, if any, to HPE.
6. Precedence. This Agreement governs the use of the Products and takes precedence over any HPE license terms included with the Products.
7. Third Party Content. Certain Products may include Third Party Products. If the Third Party Product includes Third Party Product click-wrap or shrink-wrap licensing terms, then those terms shall apply to the Third Party Products. Products may contain software and associated documentation that are confidential to, and trade secrets of, such parties. You will not take any action other than to use it as authorized under the Agreement and will not disclose it to third parties.
8. Support. No support is provided. Please contact Your local HPE reseller or HPE sales representative regarding installation or technical questions. You assume full responsibility of the effective operation and for correcting any errors within and created by Products provided under this Agreement.
9. Audit. HPE may audit You for compliance with Your Use of the Products pursuant to this Agreement. Upon reasonable notice, HPE may conduct an audit during normal business hours (with the audit cost at HPE’s expense). If an audit reveals noncompliance, then this Agreement shall immediately terminate and you shall also reimburse HPE for such audit costs.
10. Disclaimer of Warranties. YOU ACCEPT THE PRODUCTS “AS IS” WITH ANY ERRORS AND DEFECTS. HPE MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND TO THE EXTENT PERMITTED BY LAW, HPE DISCLAIMS ALL OTHER WARRANTIES. HPE DOES NOT WARRANT THAT THE OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PRODUCTS WILL OPERATE IN HARDWARE AND SOFTWARE COMBINATIONS OTHER THAN AS AUTHORIZED BY HPE IN DOCUMENTATION AND SUPPORTING MATERIAL.
11. Limitation of Liability. HPE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR LOST REVENUES OR PROFITS, DOWNTIME COSTS, OR LOSS OR DAMAGE TO DATA.
12. Disclosure of Testing Results. You shall not disclose to any third party the results of any: (i) performance benchmarks You run on Products or (ii) specific detailed comparisons You make between Products and any third party product, without the prior written consent of HPE.
13. Termination. In the event that You breach this Agreement, HPE may terminate this Agreement immediately upon written notice to You. Further, either party may terminate this Agreement without cause on five (5) days prior written notice. The rights and responsibilities of the parties pursuant to sections 4, 6, 7, 10 and 11 above shall survive the expiration of the Term or earlier termination of this Agreement.
14. Assignment. You shall not assign or otherwise transfer any rights or obligations under this Agreement. Any attempted assignment or transfer shall be voidable at HPE’s option.
15. Export Requirements. If You export, import, or otherwise transfer Products and/or deliverables provided under this Agreement, You 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 Agreement to the extent required by laws applicable to either party.
16. U.S. Governmental Rights. If Products are licensed to You for use in the performance of a US Government prime contract or subcontract, You acknowledge and agree 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.
17. 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 of this URL apply:
18. Entire Agreement and Governing Law. This Agreement represents the entire understanding of the parties with respect to the subject matter herein 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 entity signing this Agreement and the courts of that locale will have jurisdiction; however, HPE may, bring suit for payment in the country where the You are located. You 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 conflict of law.
19. Product Specific Term and Use Restrictions. The chart below shows the Product name, the Term, and any use restriction.
||Expires January 1st, 2021