Unless You have a Direct Purchase Agreement or any other form of supply or licensing agreement in place with Hitachi Vantara LLC or its Affiliate (“Hitachi”) or a Hitachi Partner, these Hitachi License Terms (“License Terms”) apply to the Hitachi software purchased or downloaded by You (“Software”). You must read these License Terms under which Hitachi will license Software to You. Capitalized terms will have the meanings indicated in Section 21 below.
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE "I ACCEPT" OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU AGREE TO THESE LICENSE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE LICENSE TERMS. IF YOU DO NOT AGREE TO THESE LICENSE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK AN ACCEPT BUTTON OR USE THE SOFTWARE AND PROMPTLY RETURN THE SOFTWARE TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT PAID.
Except to the extent that any of the following restrictions are prohibited by applicable law or the terms of any Open Source Software License or Hitachi expressly agrees to waive a restriction in writing, You must not, and must not allow any other person to:
Except as Hitachi agrees otherwise in writing, all Programs and related Documentation will be delivered to You via download or other electronic access. In all other cases, Hitachi will provide You with one (1) copy of the media and Documentation of the Software. For Software licensed to You under an enterprise license, Hitachi grants to You the right to make a reasonable number of copies of the Software solely for Your own internal use, within the scope of the enterprise license. You may also make one (1) copy of back-up or archival copies of Software solely for Your own internal business use; however, You must ensure that such copy bears Hitachi’s proprietary notices, labels or marks. You must reproduce on all copies made, all proprietary and copyright notices contained on or in the Software.
Except to the extent otherwise provided in any applicable Open Source Software license, You must not transfer the Software to any other person or entity, without Hitachi’s prior written consent. You may, however, transfer the Operating Software to a third party (“transferee”) solely with the related Equipment, but You must ensure that the transferee agrees to the terms of these Software License Terms and all additional relevant license terms. The Operating Software is provided to the transferee on an “as is” basis, with no transfer or extension of any existing warranty or support arrangements. When the transfer is complete, You must remove and destroy all copies of the Operating Software in Your possession or under Your control. You must also permanently remove all Software from any media upon which it is stored prior to disposing of the media.
If the Equipment upon which You are authorized to Use the Software becomes temporarily inoperable, You may load and Use the Software on another of Your computer systems located at the same premises, until the original Equipment becomes operable. Otherwise, You must always get Hitachi’s prior written consent before changing the Equipment on which the Software is to be Used, or its location.
Hitachi or its independent auditor may, upon reasonable notice to You, examine and audit Your records and systems to ensure compliance with Your Entitlement and these License Terms. The audit will be performed during normal Business Hours in a manner which does not unduly interfere with Your business operations. If the audit shows that You are using more copies of the Software than permitted under Your Entitlement, Hitachi may charge You additional usage fees.
Subject to this Section 10, Hitachi warrants to You that, during the Warranty Period, the Software will function in accordance with its Published Specifications. To make a valid warranty claim, You must submit a claim to Hitachi under its standard warranty claim procedures. EXCEPT AS SPECIFIED IN THESE LICENSE TERMS, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, INTEROPERABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW. HITACHI DOES NOT WARRANT THAT ANY PRODUCTS OR THIRD-PARTY SOFTWARE WILL OPERATE UNINTERRUPTED, SECURELY, OR ERROR FREE AND WILL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
Subject to Sections 5 and 11 and the exceptions in this Section, if a third party makes an IP Claim against You, You will be entitled to the following recourse, (which comprises, to the extent permitted by applicable law, Your sole and exclusive remedy against Hitachi, and Hitachi’s sole and exclusive liability to You and Your Personnel for all Losses associated with such IP Claim):
13.1 Uncapped Liability
Each Party acknowledges the full extent of its own liability to the other Party for
Losses arising from the following areas of liability: (a) death or personal injury resulting from negligent acts or omissions;
(b) Claims for non-payment; (c) the non-excludable statutory rights of consumers (for example, under laws providing for strict
product liability); (d) any infringement of Hitachi IP, including any Software license breaches; (e) breaches of any confidentiality
obligations (but this Section 13.1 does not apply to a Party’s liability for breach of Section 15.3 nor any Security Breach,
whether under these License Terms or under applicable law); (f) fraud or deceit; and (g) any indemnity obligations of a Party
under these License Terms.
13.2 Cap on Liability
13.3 Excluded Performance
Except for payment obligations, neither Party will be responsible for its failure to meet
any of its obligations due to events beyond its reasonable control, provided reasonable efforts have been made to perform those obligations.
Without limiting the previous sentence, Hitachi will not be liable for any Failure, to the extent that the Failure is caused by Your act or
omission or those of Your Personnel, End Users or any other person acting on Your behalf. You will take all measures available to mitigate
and minimize the Losses arising from any Failure, irrespective of the nature and extent of Your contribution and You will ensure that Your
Personnel do the same.
14.1 Obligations
14.2 Return or Destruction
14.3 Equitable Relief
Each Party agrees and acknowledges that a breach of this Section 14 will cause the disclosing
Party irreparable damage for which remedies other than injunctive relief will be inadequate, and agrees that the disclosing Party may
request injunctive or other equitable relief seeking to restrain such use or disclosure, without limitation or waiver of any other remedy
available at law or in equity.
15.1 Your Obligations
15.2 Hitachi's Obligations
To the extent that Hitachi processes Personal Data as part of a transaction agreed to
by the Parties under these License Terms, Hitachi will not disclose such Personal Data without Your prior written consent or otherwise
permitted by applicable law. Hitachi will comply with applicable data protection laws for that Personal Data. Hitachi may disclose Your
Personal Data to its Personnel who need to know the information to perform Hitachi’s obligations under these License Terms; and/or to its
Affiliates, subcontractors, vendors, and agents who help HitachiI perform those obligations and who are contractually required to protect
Your Personal Data or as required by applicable law.
15.3 Security Breaches
15.4 Responsibility for Data Removal
You retain responsibility for Your data and technical, logical and physical
access controls to Your data. To the full extent possible, You must ensure that, prior to removal by or return to Hitachi for any reason,
all data is removed from any Licensed Item. Hitachi takes no responsibility for data remaining on any Licensed Item that is removed by
or returned to Hitachi and You must defend, indemnify and hold Hitachi, its Affiliates and their respective Personnel harmless from and
against any and all losses, damages, liabilities, judgments, settlements, costs and other expenses (including reasonable legal fees)
that is caused directly or indirectly by Your failure to comply with this Section 15.4.
Your license in the Software is effective until its termination or expiration (whether of a license key or otherwise). Your license in the Software will terminate if You are in breach of these License Terms, any license for Third Party Software, or if you fail to pay any portion of the applicable license fee andYou fail to cure the breachwithin thirty (30) days of notice. Neither Party is deemed to have waived any of its existing rights as a result of termination. Any termination will be without prejudice to any other rights or remedies a Party may be entitled to under these License Terms or at law (or which have arisen on or before the date of termination).
Affiliate: in relation to a Party, means a business entity controlled by, controlling or under common control of such party, where “control” means owning or controlling the majority (more than 50%) of the voting rights, either directly or indirectly, or, if no voting stock exists, possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of the concerned entity. In the case of Hitachi, Affiliate also means Hitachi Limited and any business entity controlled by Hitachi Limited. However, Affiliate does not include Hitachi’s distributors, resellers, independent service providers or authorized service providers.
Business Day: a day other than a Saturday, Sunday or public holiday at the location where the Products and/or Services are delivered.
Business Hours has the corresponding meaning, based on an 8-hour working day commencing at 9.00 AM, local time.
Claims: any actions, claims, proceedings, demands, judgements, settlements or complaints of any nature.
Confidential Information: all information of a confidential or proprietary nature disclosed by one Party to another, which at the time of disclosure, is clearly marked or otherwise expressed as confidential or, under the relevant circumstances, the information would be considered to be confidential by a reasonable person whether such information is contained in electronic or any other form whatsoever and includes information relating to products, goods, services, software (including computer programs, software formulas, code, software output, screen displays, access credentials, license keys, file hierarchies, graphics and user interfaces), solutions, related documentation, samples, business operations, financials, trade secrets, business outlooks, roadmaps and plans, revenue, pricing, customer information, partner information, data, inventions, techniques, methodologies, product design and any other technical or business information and strategies of a Party or its Affiliate, as well as these License Terms, and other items expressly stated to form part of Confidential Information elsewhere in these License Terms. Confidential Information excludes any Personal Data or information that is: (i) already in the public domain prior to disclosure; (ii) becomes publicly known and made generally available after disclosure through no breach of the receiving Party; (iii) in the receiving Party’s possession prior to the time it was received from the disclosing Party or came into the receiving Party’s possession prior to the time it was received from the disclosing Party or came into the receiving Party’s possession thereafter, in each case lawfully obtained from a source other than the disclosing Party not subject to any obligation of confidentiality or restriction on use; or (iv) independently developed by the receiving Party, without use of or reference to the disclosing Party’s Confidential Information.
Core: the processor or execution core contained in the same integrated circuit within a computer’s central processing unit, whether physical or virtual, that is capable of reading and executing program instructions.
Current Version: the latest generally available Version of the Software released by Hitachi.
Data Controller: the Party who determines the purposes and means of the processing of Personal Data.
Derived Data: data created by and derived from the Products or Services, including but not limited to analytics models, statistical data and performance usage data, that does not include Personal Data or other identifying information.
Designated Use: Your internal business evaluation of the performance of the Product or Software in a non-Production Environment.
Documentation: the user or technical manuals, training materials, specifications, or other documentation applicable to the Software and provided by Hitachi.
End User: any entity or natural person to whom You supply a Hosted Service, including Your Personnel and (if applicable) unaffiliated third parties who are outside of Your organization.
Entitlement: means the details of the Software license(s) that You have purchased, including license metric, duration, and/or quantity published on Hitachi’s Price List or Quote or any other Hitachi-issued documentation confirming Your Order.
Equipment: computer hardware, storage devices, networking equipment, sensors, cameras and/or any other tangible equipment, devices, accessories and items of any type.
Failure: the failure, delay or non-performance of any obligation required of Hitachi under these License Terms.
GPL Software: certain software licensed under the GNU General Public License or other similar Open Source Software with a license that requires the licensor to make the source code publicly available.
Hitachi Code of Ethics and Business Conduct: the code of conduct located at located at https://www.hitachivantara.com/en-us/pdf/brochure/code-of-ethics-and-business-conduct.pdf and any updated or replacement document published by HITACHI from time to time.
Hitachi IP: the IP Rights in all items and materials that Hitachi provides to You or otherwise creates pursuant to these License Terms including without limitation, their changes, improvements, additions, enhancements, Versions, Updates, Upgrades and derivative works.
Hitachi Partner: a Hitachi authorised reseller or distributor.
Hitachi Price List: Hitachi’s standard price list for Products and/or Services, as updated from time to time.
Hitachi Remote Ops Services: remote diagnostic and monitoring services eligible on Equipment, using Hitachi’s proprietary remote operations tool and related Documentation.
Hitachi Website: www.hitachivantara.com and any successor or related site and all updates from time to time.
Hosted Services: any service that You supply to an End User using Products and Services that You have purchased under these License Terms, regardless of whether the Product is located at the site of the End User, the Hosted Services Provider or a third-party, You: (i) assume the responsibility for day-to-day operations and management of all or a portion of the End User’s data processing operations; (ii) perform data center management, systems integration or similar services for the End User; (iii) host and deliver, or otherwise provide access to the functionality of the Products to the End User without Reselling or sublicensing the Products to the End User; or (iv) provide business process outsourcing services to the End User.
Infringing Item: any item of the Hitachi Products that a is, or that Hitachi considers is likely to be, in whole or in part, the subject of an IP Claim.
IP Claim: a Claim made by a third party against You that any Product that Hitachi has supplies to You under these License Terms infringes that party’s patent or copyright.
IP Rights: all current and future worldwide statutory or other proprietary rights, whether registered or unregistered, including but not limited to, moral rights, copyright, trademarks, rights in designs, patents, rights in computer software data base rights, circuit layout rights, rights in know-how, mask work, utility models, rights to sue for passing off, trade secrets, inventions, trade, business, domain or company names and any application for the foregoing, including registration rights.
Legal Requirement: the law or a binding order of a governmental body as required by law or judicial, arbitral or governmental order or process (including any rules of a stock exchange).
Licensed Items: Software or Maintenance Material (as the case may be).
Losses: losses, damages, liabilities, judgments, settlements, fines, penalties, costs and expenses (including, but not limited to, reasonable attorneys’ fees, related costs and expenses) incurred in the defense of the action, claim, demand, judgement or settlement.
Maintenance and Support Services: the services related to Equipment maintenance and Software support, as defined in the WMS Terms.
Maintenance Material: diagnostic and/or tracking tools, including without limitation the Hitachi Remote Ops Services software, firmware and related documentation, personal computers or notebooks, maintenance manuals and other documentation.
Online Terms: the online documents respectively located on the Hitachi Website at the following link, https://www.hitachivantara.com/en-us/company/legal.terms-licensing-maintenance.html, which contain licensing, warranty, maintenance and support terms for the Products and Services and all replacements and updates from time to time.
Open Source License Website: https://www.hitachivantara.com/en-us/company/legal.html and any updates or replacements from time to time.
Open Source Software or OSS: third party software which may be available without charge for use, modification or distribution and generally licensed under the GNU General Public License, Lesser General Public License, Apache or other open source license.
Order: a written or electronic order for the purchase of Products/or Services from HITACHI, or a document detailing the same, including, but not limited to, description and price which is submitted in accordance with HITACHI’s then-current ordering requirements.
Order Confirmation: a written or electronic order for the purchase of Products/ or Services from Hitachi, or a document detailing the same, including, but not limited to, description and price which is submitted in accordance with Hitachi’s then-current ordering requirements.
Party: Hitachi and You when referred to individually.
Parties means Hitachi and You when referred to jointly.
Patches and Fixes: changes made to the Software by Hitachi that establish or restore substantial conformity with the applicable Published Specifications. Patches refers to minor enhancements to the Software that typically provide interoperability updates and Fixes refers to error corrections to the Software. Errors must be reproducible.
Personal Data: for You, personal information about an identifiable person that You provide to Hitachi or otherwise use as part of the supply or use of Products or Services. For Hitachi, personal information about an identifiable person that Hitachi collects under its agreement with You.
Personnel: of a Party means that Party’s employees, subcontractors, workforce members, agents and authorized representatives.
Product(s): any Equipment or Software, including Third Party Products listed in Hitachi’s Price List or as otherwise agreed by the Parties from time to time.
Production Environment: any computer system running on one or more instances of Software that is being actively used to process data or provide information to the system’s users.
Professional Services: software enablement, configuration, data migration and other migration services, implementation, data analytic and other services as agreed between the Parties from time to time.
Published Specifications: the user or technical manuals, training materials, specifications or other documentation for Products stated as valid by Hitachi at the time of acceptance of the Order, as updated by Hitachi from time to time.
Quote: a written quotation or proposal issued by Hitachi for the proposed supply of Products and/or Services.
Refund: a refund of the fees that You have paid for the Products and/or Services, which in the case of: (i) Equipment and any Software licensed under a perpetual term license, will be less a straight-line depreciation, based on a 3-year useful life; (ii) term based Programs, the unexpired period of the license and associated Maintenance and Support Services; and (iii) Services, a pro-rated refund of fees for the Services delivered that are not in conformity with the HITACHI Services warranty.
Resell: to promote, market, distribute, resell and/or sub-license Products or Services purchased under these License Terms to downstream resellers or end users. “Resale” has the corresponding meaning.
Security Breach: any accidental or unauthorized access, destruction, disclosure, modification or transfer of Personal Data.
Services: Maintenance and Support Services, Professional Services, training and any other services listed in the Hitachi Price List or similar offerings from time to time.
Service Packs: an accumulation of Patches and Fixes into a generally available package applicable to the Current Version of the Software, v1.r1.r2. released at the same time as a new maintenance level and targeted at Hitachi’s existing Software install base.
Software: the object code format of (i) programming firmware embedded in the Equipment to enable it to perform its basic functions or to operate the Equipment (“Operating Software”), (ii) stand-alone software programs supplied by HITACHI, including their license keys, where applicable, which do not fall within section (i) (“Programs”); and (iii) any Updates, Documentation, and Published Specifications.
Third-Party EULAs: : separate licenses for Third Party Software directly between You and the Third-Party Licensor, which terms may be shrink-wrapped or click-through, including related documentation, which may be provided to You by Hitachi.
Third-Party Licensor: the person set out in the Third-Party EULA who licenses the Third -Party Software to You.
Third-Party Products: any products or technology supplied to Hitachi by any party (other than Hitachi, Ltd.) for direct or indirect distribution to Hitachi’s customers.
Third-Party Related OSS: any Open Source Software licensed to, provided with or otherwise contained in, the Third -Party Software.
Third-Party Software: any software supplied to Hitachi by any party other than Hitachi, Ltd., including Third Party Licensors for direct or indictect distribution to Hitachi customers. For clarification, purposes, if any Third-Party Software contains Third-Party Related OSS, You must refer back to that applicable Third-Party EULA.
Token: a prepaid mechanism to meter user consumption.
Update: subsequent releases and error corrections and/or minor functional enhancements for Software previously licensed by Hitachi.
Upgrade: releases that contain new additional features which significantly increase the basic functionality of the Product and for which Hitachi elects to charge separately to its customers generally.
Use: to use or deploy a Licensed Item in a Production Environment for processing data either in operation of Equipment, as stand-alone Programs or in receipt of services.
Version: a generic term for code corrections, Service Packs, maintenance releases, minor releases, and major releases and/or minor functional enhancements pf a Program, generally made available to Hitachi customers.
Warranty Period: means the applicable warranty period listed in the Online Terms for the Product or, in the case of Third Party Products, as may be provided in the applicable third-party warranty terms.
WMS Terms: the Warranty, Maintenance and Support Terms forming part of the Online Terms.
You or Your: the entity with whom Hitachi licenses the Software on these License Terms.