HPE Helion Stackato: Software License Terms

Important

This agreement applies all distributions of HPE Helion Stackato except the VirtualBox distribution.

Part 1: HPE End User License Agreement

  1. Applicability. This end user license agreement (the "Agreement") governs the use of the accompanying HPE Helion Stackato Software ("Software"), unless it is subject to a separate agreement between you and Hewlett Packard Enterprise Company and its affiliates and subsidiaries ("HPE"). By downloading, copying, or using the Software you agree to this Agreement.

  2. Terms. This Agreement includes supporting material accompanying the Software or referenced by HPE, 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 below and at: HPE Helion Stackato® Open Source and Third Party Software License Agreements.

  3. Authorization. If you agree to this Agreement on behalf of another person or entity, you warrant you have authority to do so.

  4. Consumer Rights. If you obtained the Software as a consumer, nothing in this Agreement affects your statutory rights.

  5. Electronic Delivery. HPE may elect to deliver the Software and related software product or license information by electronic transmission or download.

  6. License Grant. If you abide by this Agreement, HPE grants you a non-exclusive, non-transferable license to use one copy of the version or release of the accompanying the Software for your Internal Use (as defined below) only, and is subject to any specific software licensing information that is 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 the Software to provide products or services to third parties.
    • You may not make copies and distribute, resell, sublicense, or provide access to the 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. However, such license doesn't automatically give you a right to receive such updates and HPE reserves the right to make such updates only available to customers with support contracts.
    • 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 make one copy of the Software for archival purposes or when it is an essential step in authorized use.
    • You may not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software except as permitted by law.
  7. Remote Monitoring. Some software may require keys or other technical protection measures and HPE may monitor your compliance with the Agreement, remotely or otherwise. If HPE 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 such program is made available.

  8. Ownership. No transfer of ownership of any intellectual property will occur under this Agreement.

  9. Copyright Notices. You must reproduce copyright notices on the Software and documentation for authorized copies.

  10. 90-day Limited Warranty for HPE Software. HPE-branded software is free of malware at the time of delivery; if you notify HPE within 90 days of delivery of non-conformance to this warranty, HPE will replace your copy. This Agreement states all remedies for warranty claims.

    HPE does not warrant that the operation of the Software will be uninterrupted or error free, or that the Software will operate in hardware and software combinations other than as authorized by HPE in any Supporting Material. To the extent permitted by law, HPE disclaims all other warranties.

  11. Intellectual Property Rights Infringement. Subject to Section 14(e) of this Part 1, HPE will defend and/or settle any claims against you that allege that HPE-branded software as supplied under this Agreement infringes the intellectual property rights of a third party. HPE will rely on your prompt notification of the claim and cooperation with our defense. HPE 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. HPE is not responsible for claims resulting from any unauthorized use of the software.

  12. Limitation of Liability. HPE's liability to you under this Agreement is limited to the amount actually paid by you to HPE for the relevant software, except for amounts in Section 11 ("Intellectual Property Rights Infringement"). Neither you 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; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law.

  13. 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 them to HPE. You may keep one copy of the Software and documentation for archival purposes. We may ask you to certify in writing you have complied with this section. Warranty disclaimers, the limitation of liability, this section on termination, and Section 14 ("General") will survive termination.

  14. General.

    1. Assignment. You may not assign this Agreement without prior written consent of HPE, payment of transfer fees, and compliance with HPE's software license transfer policies. Authorized assignments will terminate your license to the Software and you must deliver the Software and documentation and copies thereof to the assignee. The assignee will agree in writing to this Agreement. You may only transfer firmware if you transfer associated hardware.
    2. 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 HPE's standard commercial license.
    3. 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. HPE may suspend its performance under this Agreement to the extent required by laws applicable to either party.
    4. Audit. HPE may audit you for 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 you will pay to HPE such underpayments. If underpayments discovered exceed five (5) percent, you will reimburse HPE for the auditor costs.
    5. Third Party and Open Source Components. To the extent any component of the Software is subject to any third party license terms, including open source license terms, then those third party license terms or open source license terms shall govern with respect to the subject component; otherwise, the terms of this Agreement shall govern.
    6. Notices. Written notices under this Agreement may be provided to HPE via the method provided in the Supporting Material or if none, via "Contact Us" on www.hpe.com.
    7. 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 HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
    1. 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.
    2. 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 HPE doesn't exercise its rights under this Agreement, such delay is not a waiver of its rights.
  15. 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, then despite any other provision of this Agreement, the terms at this URL apply: http://www.hp.com/go/SWLicensing.

Part 2: Additional License Authorizations for HPE Helion Stackato Software

This Part 2 includes Additional License Authorizations (ALA) for the Software. You may Use (as defined below) the Software in accordance with the terms of this ALA in addition to the terms of your agreement with HPE, or in the absence of such agreement, the HPE End User License Agreement (EULA) in Part 1 above as well as the Ancillary, Third Party, and Open Source Software license terms listed in Part 3 (collectively the “Agreement”). You may also be referred to as "Customer" below.

Definitions

Capitalized terms not otherwise defined in this Additional License Authorizations document are defined in the governing Agreement.

Term Definition
Commercial Service Provider means a customer acting as a third party service provider contracted by an end user to provide commercial services to that end user.
Internal Use means use of the Software and documentation for purposes of supporting Customer’s internal business operations or functions.
Physical Server means a single, physical hardware server or other computer but is not a Virtual Machine.
Quote means the document issued by HPE to Customer offering a HPE Helion Stackato license and support services, together with supported extensions and/or Software Add-Ons (if any) for the term, price(s) and location(s) described therein.
Software Add-Ons means additional software components that can be added to the licensed Software for an additional fee.
Software License Key means a valid serial number issued to Customer to activate and Use the Software for the period specified with up to the maximum total amount of RAM assigned to the Virtual Machines determined by the Software License Key.
Use means to use, install, store, load, execute and display the Software in accordance with the particular license(s) purchased by Customer.
Virtual Machine(s) means a computer that does not physically exist but is simulated by another computer.

Additional License Terms

  1. Software: Subject to Customer's compliance with the terms and conditions of this Agreement, HPE grants to Customer a non-exclusive, limited, non-sublicenseable, non-transferable, revocable license to Use the Software to manage cloud services on a per Physical Server basis for the term as specified in the purchase agreement.
    • RAM License - Use of the Software is limited to the maximum amount of RAM allocated to those Virtual Machines specified in the Quote and or by the Software License Keys for the Term of the Agreement.
  2. Other Terms:
    1. Trademarks. Notwithstanding anything to the contrary in this Section, you may not distribute the Software or components of the Software using HPE trademarks unless permitted to do so under a separate written agreement with HPE.
    2. Commercial Service Providers: You must accept the terms of a supplemental HPE resale or service provider agreement in order to resell the Software or provide commercial services using the Software. If you do not have an active reseller or service provider agreement you may only use the Software for Internal Use purposes.
    3. Compliance and Audit: HPE shall have the right to audit your use of the Software at HPE's expense and in accordance with any agreement between the parties related to confidentiality.
    4. Confidentiality: The Software contains confidential and proprietary information of HPE ("Confidential Information"). You will hold in confidence and not use or disclose any Confidential Information, except as expressly permitted in the Agreement. To the extent this restriction is not prohibited under applicable law, and except as specifically authorized in writing by HPE, you shall not disclose to any third party the results of (i) any performance benchmarks you run on the Software, or any portion thereof, or (ii) specific detailed comparisons you make between the Software, or any portion thereof, and any product owned by you or a third party product.
    5. Delivery: You agree to accept the Software upon receipt.
    6. Outsourcing Software Management: You may install and run the Software on your Physical Servers that are under the day-to-day management and control of third parties, provided all such Physical Servers and other devices are and remain fully dedicated to your use. You are responsible for all of the obligations under this Agreement regardless of the physical location of the hardware upon which the Software is used.
    7. Third Party Licenses: You are responsible for complying with all terms of use for any third party software, content, service or website you load, create, or access when using the Software.
    8. Software Add-Ons: During the Term of the Agreement and provided the Customer purchases a Software Add-On as specified in the Quote, then HPE will grant the Customer a license to that Software Add-On for Use with the Software. Use of a Software Add-On is subject to any additional terms that accompany the additional component, update, or supplement.
    9. Support Restrictions: Support is limited to the most current release of the Software as specified on the website and/or the documentation, and to supported third party Software Add-On components as they are used with the Software. HPE does not provide support for any of the third party components within the Software. HPE reserves the right, at its sole discretion, to limit or cancel support for any service, language module, framework, extension, script, or other software program that has become obsolete or has been superseded by more recent services, language modules, frameworks, extensions, scripts, or software programs. HPE will provide support solely to Customer’s designated contact.

Part 3: Ancillary, Third Party, and Open Source Software

Additional license authorizations related to ancillary, third party, and open source software components are available at: HPE Helion Stackato® Open Source and Third Party Software License Agreements.

© Copyright 2016 Hewlett Packard Enterprise Development Company LP