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Cloud Services End User Agreement

END USER AGREEMENT

TERMS AND CONDITIONS FOR THE USE OF THE CLOUD SERVICES MANAGED BY

HITACHI VANTARA CORPORATION

These Terms and Conditions (“Agreement”) govern your access to, and use of, the Cloud Services which are further described on the Cloud Services Website and which Cloud Services are managed by Hitachi Vantara Corporation or its affiliate company within the jurisdiction where you are located (“HITACHI,” “we”, “us”, or “our”).  This Agreement is between HITACHI and you or the entity that you represent (“you”).  You warrant and represent that you are lawfully able to enter into this Agreement and if you enter into it on behalf of an entity, such as the company you work for, that you have legal authority to bind that entity.  HITACHI may sell the Cloud Services either directly or through a distributor (“Distributor”).  Where we sell through a Distributor, Distributor may have sold the Cloud Services to you either directly or through its own network of resellers (“Resellers”).  Furthermore, the policies that we notify to you are applicable to the Cloud Services form part of this Agreement, including, without limitation, the Acceptable Use Policy at https://www.hitachivantara.com/en-us...siteterms.html.

  1. DEFINITIONS
    “Agreement”:  The Agreement formed by your acceptance of these terms and conditions, which governs the Cloud Services
    “Cloud Services”:The cloud services governed by this Agreement
    “Cloud Services Website”:  The Website created by HITACHI or Distributor that describes the Cloud Services
    “Order”  The Purchase Order or any contract you enter into with either HITACHI, Distributor or a Reseller for the Supply of the Cloud Services
    “Subscription”:  The subscription by you for Cloud Services as specified in an Order and the terms “Subscribe” or “Subscribed” shall be construed accordingly.
    “Agreement”:  The Agreement formed by your acceptance of these terms and conditions, which governs the Cloud Services
    “Cloud Services”:The cloud services governed by this Agreement
    “Cloud Services Website”:  The Website created by HITACHI or Distributor that describes the Cloud Services
    “Order”  The Purchase Order or any contract you enter into with either HITACHI, Distributor or a Reseller for the Supply of the Cloud Services
    “Subscription”:  The subscription by you for Cloud Services as specified in an Order and the terms “Subscribe” or “Subscribed” shall be construed accordingly.
  2. Commencement of Agreement and duration of Orders
    1. This Agreement will commence when you access the Cloud Services Website and you click the “I Accept” button.
    2. For each Subscription for Cloud Services that you make and that we accept under a Order, we will make the relevant Cloud Services available to you, subject to the terms of this Agreement.
  3. Purchase and Use of the Cloud Services
    1. You may access and use the Cloud Services as set out in the relevant Order in accordance with this Agreement, provided that you adhere to all laws, regulations, policies and contractual terms applicable to the Cloud Services.
    2. Upon placing an Order with HITACHI or Distributor or a Reseller, a Customer Account associated with one valid email address will be created for you to access the Cloud Services for which you have Subscribed.  You must keep all information relating to your Customer Account up to date at all times.  You are responsible for all activities that occur under your Customer Account, regardless of whether the activities are undertaken by you, your employees or a third party, and you must keep all log-in keys and authorization credentials confidential and secure at all times.  Except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your account.  You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
    3. You may access the Cloud Services via a website(s) provided for Your use.
    4. [Only if you Subscribe online – Not currently available]You are able to Subscribe and provision Cloud Services on the relevant Cloud Services Website(s).  By Subscribing to Cloud Services online, you authorize HITACHI or Distributor or the relevant Reseller to charge you according to the price stipulated in your “Order”, until you terminate your Subscription via the relevant Cloud Services Website.
    5. You may only access and use the Cloud Services for your internal business purposes and external end user customers (“End User”).  You are not entitled to resell the Cloud Services to any person.
    6. We may discontinue or change any of the Cloud Services in whole or in part or change or remove features or functionality of a Cloud Service from time to time.  We will notify you of any material change to, or discontinuation of, the Cloud Services.
  4. Your Responsibilities
    1. You are solely responsible for the development, operation, maintenance, and use of all the content that you and/or your End Users access or use through the Cloud Services with such content including software (including machine images), data, text, audio, video, images or other content (“Content”).  You must ensure that such Content is fully compliant with all applicable policies, contractual terms and laws.
    2. If you use any Cloud Service to provide services to your End Users, you are responsible for such End Users’ use of Content and the Cloud Services.  You will ensure that your contracts with End Users are consistent with this Agreement that all End Users comply with such contracts.  If you become aware of any violation of your obligations under this Agreement due to an End User, you will immediately terminate such End User’s access to the Content and the Cloud Services.
    3. You are responsible for properly configuring and using the Cloud Services to suit your operations and requirements, as well as the Content requirements of you and/or your End Users.
    4. YOU MUST TAKE ALL NECESSARY STEPS TO MAINTAIN APPROPRIATE SECURITY, PROTECTION AND BACK-UP OF THE CONTENT, WHICH MAY INCLUDE THE USE OF ENCRYPTION TECHNOLOGY TO PROTECT IT FROM UNAUTHORIZED ACCESS AND ROUTINE BACK-UP AND ARCHIVING PROCESSES.
    5. You are responsible for providing customer service (if any) to End Users.  We do not provide any support or services to your End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
    6. You will co-operate with our investigation of outages, security problems and any breach of this Agreement and will immediately notify us of any known or suspected security breaches.
  5. Proprietary Rights
    1. As between you and us (i) we and our affiliates and licensors own all right, title and interest, including all intellectual property rights, in the Cloud Services and all infrastructure and technology used in the supply of the Cloud Services and you obtain no rights in such items, other than as expressly provided for in this Agreement, and (ii) you and your licensors own all right, title and interest, including all intellectual property rights in the Content.  However, you consent to our or our Licensor’s use of such Content to provide the Cloud Services to you or any End Users or to comply with any request of a governmental regulatory body (including subpoenas and court orders).
    2. You have no right to use any trademark or brand name of ours or of our affiliates, pursuant to this Agreement.
    3. You represent and warrant to us that; (i) you or your licensors own all right, title and interest in and to the Content; (ii) you have all rights in such Content necessary to grant the rights contemplated by this Agreement; and (iii) none of the Content, your and/or End Users’ use of the Content or the Cloud Services will violate this Agreement or the policies relating to the Cloud Services.
    4. You grant us and our affiliates a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any product or service owned by us, any feedback, suggestions, enhancement requests, or other recommendations provided by you and any of your End Users relating to any product or service owned by us.
  6. Suspension and Termination
    1. a. We may suspend the supply of any Cloud Service to you, in part or whole, without liability if:  (i) we reasonably believe that the Cloud Service is being used (or have been or will be used) by you or your End User in violation of the Agreement, or we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past;  (ii) the suspension is necessary in order for us to perform maintenance, whether scheduled or unscheduled, routine or emergency; (iii) you fail to co-operate with our reasonable investigation of any suspected violation of this Agreement; (iv) we reasonably believe that your account has been accessed or used by another person without authorization; (v) we reasonably believe that suspension of the Cloud Service is necessary to protect our network or our other customers; (vi) you are in default in making payments under an Order; or (vii) the suspension is required by law.  We will endeavor to give you reasonable advance notice of a suspension.
    2. We may terminate the supply of any Cloud Services on written notice to you if you fail to comply with any provision of the Agreement and where it is capable of remedy, you do not remedy the failure within thirty (30) days of our notice to you describing the failure.
  7. Indemnity and Liability
    1. You will defend, indemnify, and hold harmless us and our affiliates and licensors, and each of their respective employees, officers, directors and representatives from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable legal fees) arising out of or relating to the following (“Claim”):  (a) your or any End Users’ use of the Cloud Services (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) your or your End Users’ Content or the combination of such Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by such Content or by the use, development, design, production, advertising or marketing of such Content; or (d) a dispute between you and any End User.  If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
    2. You will be responsible to defend or settle the Claim, but must not settle the Claim without our prior written consent.  We may also assume control of the defense of the Claim at any time.
    3. SUBJECT TO THIS AGREEMENT, THE CLOUD SERVICES ARE PROVIDED “AS IS”.  WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDNG THE CLOUD SERVICES, INCLUDING ANY WARRANTY THAT THE CLOUD SERVERS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.  EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
    4. Our obligations to you are defined by this Agreement.  We are not liable to you for failing to provide the Cloud Services (except as expressly provided for in this Agreement), or results from our negligence or willful misconduct. You will have no recourse against us with respect to the actions or omissions of a third-party hosting service or hosting provider and its agents.  Neither of us (nor any of our employees, agents, affiliates or licensors) is liable to the other for any indirect, special, punitive, incidental or consequential loss or damage of any kind, or for any loss of profits or revenue or loss of, or damage, to data, even if the party responsible for the loss or damage has been advised of the possibility of such loss or damage.
    5. Notwithstanding anything in the Agreement to the contrary, except for liability based on our wilful misconduct or fraudulent misrepresentation and liability for death or personal injury arising from our negligence, our maximum aggregate monetary liability to you  (and that of our employees, agents, affiliates and licensors) in connection with this Agreement, the Cloud Services under any basis of law, whether for breach of contract, negligence or otherwise, will not exceed the lesser of: (a) the Fees that you have paid for the Cloud Services in the 12 month period prior to the occurrence of the event giving rise to the claim; and (b) U.S. $10,000.
  8. General
    1. If any of our information that we notify you or otherwise consider on reasonable grounds to be confidential information comes into your possession or control, you will not disclose it during this Agreement or for the period of three (3) years following the termination or expiry of this Agreement, unless you first get our written consent.  You must take all reasonable measures to avoid disclosure or unauthorized use of such confidential information and, at a minimum, take the same measures that you take to protect similar confidential information of your own.  You will not make any press statement or other public communication with respect to this Agreement or the Cloud Services, nor misrepresent or embellish the relationship between us and you, nor imply any kind of relationship exists other than as expressly provided for in this Agreement.  We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
    2. You acknowledge that, in various countries, the laws and regulations governing the export of computer products and technology may prohibit the use, sale or re-export of such products or technology, if you know (or have reason to know) that such products and technology are intended for use in connection with the design, development, production, stock piling or use of nuclear, chemical or biological weapons or missiles and, in some countries (e.g. China), for certain conventional military end-uses.  If you sell, or transfer to another person or entity, the title in, or any right to use any part of the Cloud Services or any other materials supplied by HITACHI to you, you will ensure that all applicable export restrictions of the nature described in this section are observed.  
    3. You agree and acknowledge that we may modify this Agreement and any policies relating to the Cloud Services at any time by posting a revised version on the Cloud Services Website or otherwise notify you in writing.  The modified terms will take effect upon the date of posting or written notification.  By continuing to use the Cloud Services, you will be deemed to have accepted the modified terms and will be bound by them.  You are responsible to check the Cloud Services Website for any modifications.
    4. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any act or omission by you, your End Users  or any person acting on your or their behalf, or from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.  In such circumstances, we may adjust any timetable or schedule for performance of our obligations as necessary.  
    5. Notices that we may provide you under this Agreement will be either posted on the Cloud Services Website or sent by email to the email address associated with your account.  Notices we provide by posting on the Cloud Services Website will be effective upon posting and notices we provide by email will be effective when we send the email, whether or not you actually receive the email.  Any notices that you send under this Agreement to us must be in writing to the relevant person and address set out in the country-specific terms applicable to where you are located.  If there is no such express term applicable to you, the default recipient for notices will be as follows:  Chief Legal Officer and General Counsel, Hitachi Vantara Corporation, 2845 Lafayette Street, Santa Clara, CA 95050-2627 Fax 1-408-496-6315.  This Agreement and all notices and other communications under this Agreement must be in English.  Notices provided by personal delivery will be effective immediately.  Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent.  Notices provided registered or certified mail will be effective three (3) business days after they are sent.
    6. You must not assign or novate this Agreement, nor delegate or sub-license any of your rights under this Agreement, without our prior written consent, and any attempt to do so will be void.  Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
    7. Our failure to enforce any part of this Agreement will not be a present or future waiver of that part nor limit our right to enforce it in the future.  All waivers must be in writing.
    8. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.  Any invalid or unenforceable portions will be interpreted to effect the intent of the original portion.  If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
    9. This Agreement will be governed by the laws of the State of California and you and We agree to the jurisdiction of, and venue in, the courts in Santa Clara, California; however, we may seek to enforce any judgment anywhere in the world where you may have assets.  You will not bring a claim under the Agreement more than twelve (12) months after the event giving rise to the claim occurred.
    10. This Agreement, along with the Order, the country-specific terms and the policies relating to the Cloud Services comprises the complete and exclusive agreement between you and us regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. k. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order:  applicable country-specific terms, this Agreement, and the policies relating to the Cloud Services. l. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
  9. United States Government Users (if applicable)     
    1. Commercial Computer Software
      The HITACHI product is “Commercial Computer Software”, as that term is defined in 48 C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of “commercial computer software” and “commercial computer software documentation”.
    2. United States Federal Civilian Government Entities
      If you are a federal civilian government entity, HITACHI provides the HITACHI product, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this “standard” or “customary” commercial license Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors.
    3. United States Department of Defense Agencies
      If you are any agency within the Department of Defense (“DOD”), HITACHI provides the HITACHI products for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this “standard” or “customary” commercial Agreement, as specified in 48 C.F.R. §§227.7202-3 and 48 C.F.R. §§227.7202-4 of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202.  This Government Users clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the HITACHI products under this Agreement and in any subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.

 

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