Important notice: Please read the following terms and conditions carefully. When you issue an order for the HPE Proliant Easy Connect Services, you confirm that you understand these terms and conditions, have the authority to accept that they apply to your company or organization’s subscription to the HPE Proliant Easy Connect Services and agree to these terms and conditions.
1.1 When they start with a capital letter, the following words and phrases have the meanings shown:
(a) Agreement: these terms and conditions together with any Orders accepted by Supplier under clause 2.
(b) Commencement Date: the date that the Hardware is installed and connects to the Supplier’s cloud management platform.
(c) Customer: the company or organization identified on the Order who subscribes for the Services.
(d) Hardware: the appliance(s) upon which the Service is run.
(e) Intellectual Property: patents, trade and service marks, trade names, design rights, topography rights, copyright (including rights in computer software and moral rights), database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection which have a similar effect anywhere in the world.
(f) Order: Customer’s purchase order or a completed Supplier order form.
(g) Party: Supplier or Customer and Parties means both of them.
(h) Service Description: the then current versions of the Zynstra Technical Briefing Notes, currently available at, https://support.ProLiantEasyConnect.com.
(i) Services: the particular services to be supplied by Supplier that are identified on an Order and will be supplied in accordance with the Service Description. Services includes continuous incremental improvements, enhancements, patching and upgrades.
(j) Supplier: Zynstra or any other authorized party who accepts an Order and who is authorized to arrange for the supply of the Services by Zynstra.
(k) Zynstra: Zynstra Limited.
2 Order procedure
2.1 Customer must submit an Order to Supplier whenever it requires Services. The Order must show:
(a) the particular Services required by Customer;
(b) Customer’s technical and financial contacts;
(c) Customer’s preferred Commencement Date;
(d) the unit rates or price for the Services provided by Supplier.
2.2 Supplier accepts or rejects an Order and, if an Order is accepted, advises the Customer of the planned Commencement Date. Supplier may reject any Order at its sole discretion. An Order will be deemed accepted once Supplier begins fulfillment of an Order. Following acceptance, the Agreement shall come into existence and shall remain in full force and effect until termination or expiration in accordance with the terms and conditions set forth herein.
2.3 Customer may cancel any Order without charge or penalty by giving Supplier notice at any time before an Order is accepted under clause 2.2.
3 Setup of the Services
3.1 Each Party’s general responsibilities for setup of the Services are described in the Service Description. Following acceptance of an Order, Supplier will confirm with Customer’s technical contact each Party’s detailed responsibilities and the timetable for making the Services available by the planned Commencement Date. Supplier must approve Customer’s internet connectivity specification. Customer is responsible for arranging for the approved internet connectivity service to be in place by the planned Commencement Date and maintain such internet connectivity throughout the term of the applicable Order unless modified in accordance with clause 7.5.
3.2 Customer must provide Supplier with reasonable access to Customer’s premises, systems and technical contact for the purpose of setup of the Services. Customer must give Supplier prior notice of all reasonable regulations relating to Customer’s premises and Supplier will use commercially reasonable efforts to observe the same.
3.3 Supplier may charge at its standard rates for any previously agreed visits to Customer’s premises, if Supplier is unable to carry out its responsibilities because Customer responsibilities are incomplete.
3.4 Customer accepts that it may experience temporary disruption to its systems and operations during the setup of the Services. Supplier will use its commercially reasonable efforts to minimize such disruption.
3.5 Supplier will reasonably endeavor to comply with Customer’s requests with respect to the setup of the Services, but Customer accepts that Supplier must have the final decision on matters that might affect the efficient performance of the Services.
3.6 Once the setup is complete, Supplier will notify Customer of the Commencement Date.
4 The Services
4.1 Supplier will supply the Services in all material respects in accordance with the Agreement and the Service Description.
4.2 Supplier warrants that it will reasonably endeavor to commence the supply of the Services by the planned Commencement Date and thereafter use commercially reasonable efforts to supply the Services with the skill and care of a supplier of similar services.
4.3 Supplier warrants that it will maintain all necessary authority and Intellectual Property to supply the Services.
4.4 In order to measure and improve performance, Supplier may install monitoring systems in connection with the Services so as to collect and analyze anonymized and/or aggregated information. Supplier will only disclose the same to third parties who supply components of the Services.
4.5 Customer must use the Services in accordance with the Agreement and any documentation or reasonable instructions of Supplier. Customer will not use the Services to access, store, distribute or transmit any Objectionable material or for any Objectionable purpose. “Objectionable” means unlawful, false, fraudulent, misleading, offensive, pornographic, obscene, derogatory, discriminatory, racist, defamatory, inflammatory, malicious, threatening, causing nuisance or anxiety, unsolicited mass mailing, flooding, mail-bombing, spamming, or infringing the rights (including intellectual property rights) of Supplier or third parties, or otherwise expose Supplier to claims, liability, prosecution, disrepute or other similar third party actions.
4.6 Customer may not sell or re-sell, sub-license, lease, rent, use the Service in the operation of a service bureau, outsourcing or time-sharing service, or otherwise supply the Services to any third party, but Customer may use the Services to provide its own products or services to its own customers including the right for Customer’s own customers to access the Services where necessary for Customer to successfully deliver its products and services.
4.7 Customer will ensure that its technical contact has the ability to undertake routine diagnostics, maintenance and systems administration of the Services.
4.8 Customer will ensure that administrative privileges to the Services are only assigned to suitably experienced persons who are sufficiently familiar with the Services and that such persons protect their passwords and generally observe good information security practices and controls. Customer shall remain liable for all use of the Services through Customer’s administrative privileges, whether authorized or not.
4.9 Customer shall abide by the license terms notified by Supplier of any software incorporated into or supplied with the Services including those annexed to these terms and conditions or provided to or made available to Customer during the term of this Agreement.
4.10 Customer is solely responsible for the legality, compatibility, operation and maintenance of the applications and systems it uses with the Services, except for maintenance responsibility for specified Customer applications or systems explicitly set forth on an Order.
4.11 Customer shall maintain the environmental, systems and operational requirements specified by Supplier.
4.12 Customer must not (i) attempt to repair, adjust, modify, interfere with or copy any software, system or Hardware used or supplied by Supplier in connection with this Agreement; (ii) attempt to circumvent any security measures put in place by Supplier or interfere with any monitoring systems installed by Supplier; (iii) copy, decompile, disassemble, translate, reverse engineer or otherwise modify any portion of the Service; or (iv) use the Service in a manner that interferes with Supplier’s software, systems or Hardware. Customer will reasonably co-operate with any requests from Supplier regarding the foregoing and/or concerning such systems and with any monitoring or reporting requirements. For clarification, if Customer does any of the foregoing, then Supplier cannot guarantee that SLA requirements shall be met.
4.13 Customer must maintain any Hardware purchased to enable the provision or support of the Services in according with Supplier’s specification. Supplier will not be responsible for failing to meet the SLA if the Hardware is lost, stolen, damaged or altered in any way from Supplier’s specifications.
4.14 No part of these terms shall have the effect of a transfer or grant of license to any of the software or applications contained in the Services unless expressly granted by the Supplier.
4.15 Customer must not to attempt to access the administrative or management portal of underlying third party services provided as part of the Service for the purpose of operating workloads, storing data, reconfiguring the Service, circumventing security or accessing functionality provided by an underlying service. Should a Customer gain access a portal of an underlying third party service then Customer must immediately advise Supplier.
4.16 Customer may copy and use any documentation supplied by Supplier only in connection with the proper use of the Services.
4.17 The Services require, but do not include, internet connectivity unless otherwise agreed.
5.1 Customer will only use the call reporting and handling processes advised by Supplier to notify Supplier of any problems with the Services. Customer will provide such information and access (physical or remote) that Supplier may reasonably require to analyze the fault. Customer’s own customers must notify problems through Customer and not directly with Supplier.
5.2 Supplier’s responsibilities for fixing reported problems are described in the Service Description.
5.3 Supplier will aim to achieve the availability target, recovery point objective and recovery time objective (RTO) set out in the Service Description. Availability and RTO are measured after accounting for acts or omissions of Customer, Supplier’s published maintenance window and any incident of force majeure under clause 20.
5.4 The support provided by Supplier as part of the Services does not include consultancy, user familiarization or training.
5.5 Supplier may, at its sole discretion, assist Customer with any problems relating to the Services which are excluded or not covered by the Agreement and will advise Customer in advance of any charges relating to such assistance. Any such assistance will be provided on a commercially reasonable efforts basis only and the timescales set out elsewhere in this clause 5 will not apply.
6 Prices and payment
6.1 Customer will pay Supplier in accordance with this clause 6 for the Services either at the price shown on the Order or calculated at the rates/unit prices shown on the Order.
6.2 Unless an Order states otherwise, by giving Customer at least sixty days’ prior written notice, Supplier may increase its rates and prices with effect from any anniversary of the Commencement Date by either:
(a) the annual percentage change for the U.S. city average in the year-over-year consumer price index for all urban consumers (CPI-U), which is released by the United States Department of Labor’s Bureau of Labor Statistics (and which is available online at www.bls.gov/cpi) (“CPI”); or
(b) the price change generally applicable to Supplier’s customers.
For the avoidance of doubt, Supplier may only amend the price of the Services on the anniversary of the Commencement Date. If Customer does not accept this new price it may terminate the Agreement as set out in clause 7.3.
6.3 Prices exclude any sales or purchase taxes, taxes on use, withholding tax, duties, levies or similar in any territory whether relating to the Agreement or the Services; which will be paid by Customer at the prevailing rate.
7.1 So as to continuously improve its operations, Supplier may revise the Services from time to time. Supplier shall give Customer at least sixty days’ notice if any change decreases Customer’s rights or increases Customer’s obligations under this Agreement.
7.2 Supplier may also revise these terms and conditions or any associated documents to take effect from either the 1st of February and/or the 1st of August, each year by making a general announcement to its customer base at least sixty days in advance.
7.3 If Customer reasonably believes that any of the revisions in clauses 6.2, 7.1 or 7.2 materially reduces its rights or materially increases its obligations, it may terminate the Services by giving Supplier at least thirty days’ notice prior to the date when the revision would become effective. In such case Supplier will repay Customer fees already received for the terminated Services that would have been supplied after the date of termination, less any third party termination fees agreed to between the Parties during the thirty-day notice period.
7.4 Customer must give Supplier at least thirty days’ notice of any changes to its premises that may impact the Services. Supplier may charge Customer for any substantiated costs incurred as a result of such change.
7.5 Customer may not change its internet connectivity arrangements without Supplier’s prior written agreement.
7.6 Customer may add to or vary the Services by issuing a new Order. If the pricing applicable to the new Order is different to that which applied to the original Order, the subscription term for the new Order will be for a minimum of twelve months unless otherwise agreed in writing. For the avoidance of doubt, the Services may not be varied in a way that reduces the original Order’s subscription term.
7.7 The Agreement may only be changed as set out in clause 6, this clause 7 or by any written agreement of the Parties which is stated to be a change made under this clause 7.7 and is executed by authorized representatives of each party.
8 Intellectual Property
8.1 All Intellectual Property relating to the Services and derivative works thereof arising out of the Services during the course of the Agreement will be owned exclusively by Supplier or its licensors.
8.2 Supplier grants Customer the limited, non-exclusive, non-assignable right (without right to sub-license) to use the Intellectual Property in the Services for Customer’s internal business purposes for the duration of the applicable accepted Order. Customer acquires no other rights to Supplier’s Intellectual Property.
8.3 Supplier will indemnify Customer from all claims that the Intellectual Property in the Services infringes the rights of any third party in the United States, provided that Customer:
(a) has used the Intellectual Property in accordance with the Agreement;
(b) does not make or intimate any admission, settlement, opinion or undertaking that may be detrimental to Supplier’s defense;
(c) gives Supplier prompt notice of any claim and the right to defend and settle any such claims in its own discretion;
(d) gives Supplier reasonable assistance to defend any such claims at Supplier’s cost; and
(e) uses all reasonable efforts to mitigate Supplier’s liability.
8.4 If any such infringement occurs or may occur, Supplier may at its sole option and expense obtain the right for Customer to continue using the Services or modify them so as to avoid the infringement without materially altering their functionality or withdraw the affected Services and repay Customer 110% of the aggregate sum paid for those Services in the twelve months prior to the infringement claim.
8.5 Notwithstanding clauses 8.3 and 8.4, Supplier shall have no obligations under this clause 8 or otherwise with respect to claims based on: (a) any modification to the Services made without Supplier’s express written approval; (b) a combination of Services with non-Supplier products or services; or (c) use for a purpose or in a manner for which the Services are not designed. This clause 8 states Customer’s sole and exclusive remedy and Supplier’s entire liability for any infringement claims or actions.
9.1 Supplier may suspend the Services:
(a) for any reason that would give Supplier the right to terminate the Agreement subject to giving Customer at least ten days’ notice;
(b) if required to do so by any third party that has its software or Hardware either embedded in the Services or used in connection with the Services. Supplier will give Customer as much notice as practicable under the circumstances;
(c) in order to carry out emergency maintenance, Supplier will give Customer as much notice as practicable under the circumstances.
9.2 Supplier will promptly re-instate the Services as soon as practicable after the event causing the suspension has ceased.
9.3 Except for suspension under clause 9.1 (b) and (c), Customer remains liable to pay Supplier as if the Services had been continuously supplied throughout any period of suspension.
9.4 Supplier’s rights to suspend the Services do not affect its termination rights.
10.1 Either Party may terminate the Agreement with immediate effect by giving the other Party written notice if the other Party:
(a) breaches any material term, condition or provision of the Agreement or any material provision required by law and fails to remedy the breach within thirty days of written notice; or
(b) ceases to carry on as a business, or receives a court order or passes a resolution for winding-up (other than for the purpose of solvent amalgamation or reconstruction), or is declared insolvent; initiates any arrangement or composition with its creditors; has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or is otherwise subject to any bankruptcy or insolvency proceeding.
10.2 Within thirty days of the date of termination Customer is solely responsible for: arranging any replacement of the Services, returning all software and documentation received from Supplier, backing up all its affected systems and data and removing all of its software and data from platforms included with the Services. At any time after thirty days from the date of termination, Supplier may disable the Services and delete any copies of Customer information and data within its control.
10.3 All rights and obligations of the Parties under the Agreement, will automatically cease upon termination except for such rights of action that accrue prior to termination and any rights or obligations under the Agreement or at law, which expressly or by implication come into or continue in force upon termination.
11 Term and renewals
11.1 Customer must contact Supplier not less than 30 days of the end of each Order term to discuss Customer’s renewal or cancellation options. Within this period, Customer will have two options:
(a) to enter into the renewal process with Supplier to sustain or alter their current subscription to meet their business needs; or
(b) to notify Supplier that they wish to terminate their subscription at the end of their Order term.
11.2 Supplier will continue to support Customers by providing the Services to Customers who do not contact the Supplier regarding renewal or cancellation of their subscription. The contract for the Services will be renewed for an additional twelve months at the then current twelve month subscription price.
11.3 This Agreement shall remain in full force and effect so long as accepted Orders remain in effect. Upon either termination of this Agreement or the expiration or termination of all accepted Orders, this Agreement shall be deemed to have expired except for the clauses that survive in accordance with clause 10.3 and clause 14.1.
12 Disclaimer of warranties
12.1 Customer accepts that computer systems in general cannot be free of errors or interruptions and agrees that the existence of errors or interruptions in the Services does not constitute a breach of this Agreement.
12.2 EXCEPT AS SET FORTH IN CLAUSE 4 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER PROVIDES THE SERVICES “AS-IS,” MAKES NO OTHER EXPRESS WARRANTIES UNDER THIS AGREEMENT, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY.
13 Limitations on liability
13.1 Supplier’s aggregate liability in any twelve month period to Customer for direct loss or damage arising under contract, law or tort will not exceed the greater of a) $1,000 or b) 110% of the sum paid by Customer for the affected Order(s) in the twelve months prior to the event giving rise to the liability.
13.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SUPPLIER BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOST BUSINESS OPPORTUNITIES, INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.
13.3 The limitations on liability set forth in this clause 13 shall apply regardless of whether Supplier has been advised of the possibility of such damages and regardless of whether any remedy fails of its essential purpose.
14.1 “Confidential Information” is information which the disclosing Party identifies as confidential or which is usually considered to be confidential in the industry. Confidential Information excludes information which was already legitimately known by the receiving Party before the start of discussions leading to the Agreement or which is or becomes independently known to it or becomes public knowledge without any breach of this clause. Each Party will only use Confidential Information as necessary for performance of this Agreement and disclose the other Party’s Confidential Information to those of its own personnel who need to know for purposes connected with the Agreement. Each Party will apply the best practices of the industry to protect the other Party’s Confidential Information from unauthorized disclosure. The obligations in this clause survive termination of the Agreement.
14.2 Customer agrees that Supplier may include Customer in its list of customers. For any publicity regarding Customer in addition to such list, Supplier will obtain Customer’s prior written approval, which will not be unreasonably withheld, conditioned or delayed.
15 Dispute resolution
15.1 Except for interim injunctive measures with respect to breach of confidentiality or infringement of Intellectual Property, the chief executive of each Party or their nominees will have fourteen days to resolve any dispute before either Party may resort to any other course of action.
16 Assignment and subcontracting
16.1 Supplier may subcontract any part of the Services but will be responsible for the acts and omissions of such subcontractors. Supplier may assign or transfer this Agreement pursuant to a sale, merger or other business reorganization of Supplier or any of its operating units. Except as set forth in this clause, neither Party may assign or transfer all or part of the Agreement, or any of its rights or obligations or appoint any agent to perform the same without the other’s prior written agreement. Neither Party will unreasonably delay or withhold agreement if the other wishes to transfer all of its rights and obligations to a wholly owned subsidiary, or to a wholly owned subsidiary of its parent company, or to its parent company. The Agreement is binding upon the Parties’ successors or assignees.
17.1 Failure by either Party to enforce any provisions of the Agreement will not represent a waiver of such rights and will not affect the validity of the Agreement.
18.1 If any part of the Agreement is found to be invalid or unenforceable, it will be deemed to be amended to the minimum extent required to remove the invalidity or unenforceability so that the Agreement remains valid and unaffected to the fullest possible extent.
19.1 Any notice or written agreement under the Agreement may be given by:
(a) mail or courier to the other Party’s authorized representative at any address shown in the Agreement, or to any other address as one Party has notified the other of, and will be valid on the date of recorded receipt, or
(b) email to the email address of the other Party’s authorized representative and will be valid at the time of sending unless the email system has generated an unsuccessful transmission or unsuccessful delivery report.
20 Force majeure
20.1 Except for the obligation to make payments properly due, neither Party will be liable for delays or failures caused by circumstances beyond its reasonable control. The affected Party must promptly give the other notice of any such delay or failure and use commercially reasonable efforts to mitigate the delay or failure.
21 Legal construction of the Agreement
21.1 No provision in this Agreement is intended, nor shall any be interpreted, to provide any person not a Party to this Agreement with any remedy, claim, liability, reimbursement, cause of action or create any other third party beneficiary rights against Supplier.
21.2 Supplier and Customer are independent entities. This Agreement shall not constitute, create or give effect to a joint venture, pooling arrangement, principal/agency relationship, partnership relationship, employer/employee or formal business organization of any kind and neither Supplier nor Customer will have the right to bind the other without the other's express prior written consent.
21.3 The Services are subject to the export control laws of various countries, including without limitation the laws of the United States. Customer shall also be responsible for complying with all such applicable laws.
21.4 The Parties agree to use the English language for all matters relating to the Agreement.
21.5 The Agreement is governed by New York law (without giving effect to principles of conflict of laws) and subject to the exclusive jurisdiction of the state and federal courts in the State of New York. The United Nations’ Convention on Contracts for the International Sale of Goods does not apply.
21.6 The Agreement represents the entire agreement and understanding between the Parties in respect of its subject matter and the terms and conditions of any purchase orders, acknowledgements or similar documentation put forward by Customer have no effect whether or not Supplier supplies the Services without expressly rejecting such terms and conditions.
21.7 Customer accepts all of the above by submitting an Order to Supplier. Supplier accepts all of the above by accepting an Order.
END USER LICENSE TERMS
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE
This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by Zynstra Limited (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.1. DEFINITIONS.
“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device.
“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.
“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.2. OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.