TERMS AND CONDITIONS FOR THE USE OF HPE PROLIANT EASY CONNECT MANAGED HYBRID SERVER (Rest of the World)
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 and have the authority to accept that they apply to your company or organisation’s subscription to the HPE Proliant Easy Connect Services.
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 the Order 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 organisation 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 Easy Connect Service Description, currently available at, https://support.ProLiantEasyConnect.com.
(i) Services: the particular services to be supplied by Zynstra that are identified on the Order and will be supplied in accordance with the Service Description that appears at “https://support.ProLiantEasyConnect.com.” In order to supply the Services Customer will purchase Hardware specified by Supplier which will be installed by Supplier on Customer’s premises. The Services require but do not include internet connectivity unless otherwise agreed. Services includes continuous incremental improvements, enhancements, patching and upgrades.
(j) Supplier: Zynstra Limited or any other authorised party who accepts the Order and who is authorised to arrange for the supply of the Services by Zynstra Limited.
2 Order procedure and term
2.1 Customer must submit an Order to Supplier whenever it requires Services. The Order must show:
(a) the particular Services required by the Customer;
(b) Customer’s technical and financial contacts;
(c) Customer’s preferred Commencement Date;
(d) the unit rates or price for the Services agreed between the Parties.
2.2 Supplier will confirm its acceptance of the Order and advise the planned Commencement Date. Supplier may reject any Order at its sole discretion. The Order will be deemed accepted if Supplier has not notified Customer of its acceptance or rejection within five days of receipt. Following acceptance the Agreement shall come into existence.
2.3 Customer may cancel any Order without charge or penalty by giving Supplier notice at any time before the 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 the 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.
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 reasonable endeavours 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 reasonable endeavours to minimise such disruption.
3.5 Supplier will reasonably endeavour 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 warrants that it 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 endeavour to commence the supply of the Services by the planned Commencement Date and thereafter to supply the Services with the skill and care of a competent and successful supplier of similar services.
4.3 Supplier warrants that it will maintain all necessary authority and Intellectual Property to supply the Services.
4.4 To the extent permitted by law, Supplier’s obligations in clause 4 replace all other warranties with respect to the Services, either express or implied, including but not limited to any implied warranties of satisfactory quality or fitness for any particular purpose.
4.5 In order to measure and improve performance, Supplier may install monitoring systems in connection with the Services so as to collect and analyse anonymised and/or aggregated information. Supplier will only disclose the same to third parties who supply components of the Services or as may be required by any third party with relevant statutory authority.
4.6 Supplier may from time to time issue Customer reports on usage and performance of the Services in such format as Supplier shall decide.
4.7 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 of Supplier or others or likely to expose Supplier to claims, liability, prosecution, disrepute or other similar third party actions.
4.8 Customer may not sell or re-sell, sub-license, lease, rent 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 this is necessary for Customer to successfully deliver its products and services.
4.9 Customer will ensure that its technical contact has the ability to undertake routine diagnostics, maintenance and systems administration of the Services.
4.10 Customer will ensure that administrative privileges 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 practice.
4.11 Customer shall abide by the licence terms notified by Supplier of any software incorporated into or supplied with the Services including those annexed to these terms and conditions.
4.12 The Services may include some maintenance responsibility for specified Customer applications or systems but otherwise Customer is solely responsible for the legality, compatibility, operation and maintenance of the applications and systems it uses with the Services. Supplier may provide advice and guidance in connection with the same on a reasonable efforts basis.
4.13 Customer shall maintain the environmental, systems and operational requirements specified by Supplier and take all reasonable measures to prevent the Hardware upon which the Service runs from loss or damage.
4.14 Customer must not attempt to repair, adjust, modify, interfere with or copy any software or Hardware used or supplied by Supplier in connection with this Agreement; nor attempt to circumvent any security measures put in place by Supplier or interfere with any monitoring systems installed by Supplier. Customer will reasonably co-operate with any requests from Supplier concerning such systems and with any monitoring or reporting requirements.
4.15 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.
4.16 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.
4.17 Customer must not to attempt to access the administrative or management portal of underlying third party services provided as part of the HPE Proliant Easy Connect Service for the purpose of operating workloads, storing data, reconfiguring the HPE Proliant Easy Connect 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 who will remedy the situation.
4.18 Customer may copy and use any documentation supplied by Supplier only in connection with the proper use of the Services.
4.19 Customer accepts that computer systems in general cannot be free of errors or interruptions and agrees that their existence does not constitute a breach of this Agreement.
5.1 Customer will only use the call reporting and handling processes advised by the Supplier to notify Supplier of any problems with the Services. Customer will provide such information and access that Supplier may reasonably require to analyse the fault. Customer’s own customers must report 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 The 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 allowing for acts or omissions of Customer, Supplier’s published maintenance window and any incident of force majeure under clause 17.
5.4 The obligations in clauses 4.2, 5.2 and 5.3 are in full satisfaction of any breach of the warranties in clause 4.
5.5 The support provided by Supplier as part of the Services does not include consultancy, user familiarisation or training.
5.6 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 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 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 the 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 movement in the latest available All Items Retail Prices Index excluding Mortgage Interest Payments published by the UK Office for National Statistics (RPIX); or
(b) the price change generally applicable to Supplier’s customers. If Customer does not accept this new price it may terminate the Agreement as set out in clause 7.5.
(c) for the avoidance of doubt, the Supplier may only amend the price of the Services on the anniversary of the Commencement Date. Prices will not be altered upon assignment.
6.3 Prices exclude UK VAT and 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 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 7.1 or 7.2 reduces its rights or 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 Zynstra at least thirty days’ notice of any changes to its premises. Supplier may charge Customer for any reasonable and 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 or this clause 7 or by any written agreement of the Parties which is stated to be a change made under this clause 7.7.
8 Intellectual Property
8.1 All Intellectual Property relating to the Services and derivative works thereof arising out of or during the course of the Agreement will be owned exclusively by Supplier or its licensors.
8.2 Supplier grants Customer the non-exclusive, non-assignable right (without right to sub-license) to use the Intellectual Property in the Services for the duration and purpose of the Agreement. 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 provided that Customer:
(a) has used the Intellectual Property in accordance with the Agreement;
(b) does not knowingly make or intimate any admission, settlement, opinion or undertaking that may be detrimental to Supplier’s defence;
(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;
(e) uses all reasonable endeavours 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.
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; or
(b) if required to do so by any third party with relevant statutory authority. Supplier will give Customer as much notice as practicable in the circumstances; or
(c) in order to carry out emergency maintenance. Supplier will give Customer as much notice as practicable in 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 (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 or persistently breaches any lesser term, condition or provision, 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; or initiates any arrangement or composition with its creditors; or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or is deemed by any relevant statutory provisions to be unable to pay its debts.
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 and backing up all its affected systems and data from platforms provided as part of 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. Following the expiry of this thirty day period Supplier shall terminate the Service.
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.
11.1 Customer must contact Supplier not less than 30 days before the end of their contract term to discuss their renewal or cancellation options. The Customer will have two options:
(a) to enter into the renewal process with the Supplier to sustain or alter their current subscription to meet their business needs; or
(b) to notify the Supplier that they wish to terminate their subscription at the end of their contract 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.
12.1 Except as set out in clauses 12.2, 12.3 and 12.4, 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.
12.2 Supplier’s maximum aggregate liability for loss or damage to the physical property of Customer arising under contract, law or tort shall not exceed £100,000.
12.3 Supplier has no liability to Customer for any indirect, special or consequential loss or damage, loss of anticipated savings, profits, business, revenue or goodwill howsoever arising.
12.4 Supplier does not exclude or limit liability for death or personal injury caused by its negligence or for liability resulting from its willful misconduct or fraud.
13.1 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 disclose the other Party’s Confidential Information to those of its own personnel who need to know for purposes connected with the Agreement and to those third parties who have relevant statutory authority. Each Party will apply the best practices of the industry to protect the other Party’s Confidential Information from unauthorised disclosure. The obligations in this clause survive termination of the Agreement.
13.2 Customer agrees that Supplier may include Customer in its list of customers. Supplier will obtain Customer’s prior written approval, which will not be unreasonably withheld or delayed, for any publicity which mentions Customer.
14 Dispute resolution
14.1 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 thirty days to resolve any dispute before either Party may resort to any other course of action.
15.1 Supplier may subcontract any part of the Services but will be responsible for the acts and omissions of such subcontractors but otherwise 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.
16.1 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.
17.1 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.
18.1 Any notice or written agreement under the Agreement may be given by:-
(a) mail or courier to the other Party’s authorised 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 authorised representative and will be valid at the time of sending unless the email system has generated an unsuccessful transmission or unsuccessful delivery report.
19 Force majeure
19.1 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 reasonable endeavours to mitigate the delay or failure.
20 Legal construction of the Agreement
20.1 No part of the Agreement may be enforced by any person who is not a party to it whether relating to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
20.2 The Parties agree to use the English language for all matters relating to the Agreement.
20.3 The Agreement is governed by English law and subject to the exclusive jurisdiction of the English courts. The United Nations’ Convention on Contracts for the International Sale of Goods does not apply.
20.4 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.
20.5 Customer accepts all of the above by submitting an Order to Supplier. Supplier accepts all of the above by accepting the 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.
“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.
- 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.
- USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
- USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, INSTALL AND/OR DISTRIBUTE ANY CLIENT SOFTWARE AND/OR REDISTRIBUTION SOFTWARE. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with
such additional terms, as provided to you by Customer.
- COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
- NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
- TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
- NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
- PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
- NOT FAULT TOLERANT. The Products are not fault- tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
- EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
- LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
- INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with
Customer and to verify your compliance.