Last updated: April 7, 2017
This license governs the use of Hitachi Solutions America Ltd (“Hitachi Solutions”) Software which is being made available to You by Hitachi Solutions via the portal or website pursuant to which this End User License Agreement is accepted (the “Software”) but which shall exclude any Hitachi Solutions software licensed to You on any other terms. Please read these terms carefully before accessing or using the Software. By accessing or using the Software, You accept the terms of this End User License Agreement. If You do not accept the license terms, do not access or use the Software. All pre-printed terms contained in any document used by You to order Software and/or user licenses from Hitachi Solutions are hereby fully rejected by Hitachi Solutions and shall have no legal effect. We license use of the Software to You on the basis of this End User License Agreement and subject to any rules or policies applied by any operator from whose site You access the Software. We do not sell the Software to You and We remain the owner of the Software at all times. You acknowledge that You will be required to hold a Microsoft Dynamics 365 License in order to access the Software for demonstration purposes.
“Hitachi Solutions” or “We” refers to Hitachi Solutions America Ltd., its subsidiaries and affiliated organizations. “You” or “Your” is the organization that will be using the Software. This is a business to business End User License Agreement and any use of the Software by consumers who are not acting in the course of business is not permitted. “Party” refers to each of Hitachi Solutions and You individually and “Parties” refers to Hitachi Solutions and You collectively.
If You subscribe to the Software License or if You access the Software for demonstration purposes, Hitachi Solutions will provide You with executable code and all relevant Software related items (which may include, by way of example, task recordings) which Hitachi Solutions in its sole discretion deems necessary or desirable for the functionality of all Software provided to You, and will in consideration of You agreeing to abide by the terms of this End User License Agreement and, in the case where You subscribe to the Software License, of payment of the agreed license fees. If Your use of the Software requires professional services to install or implement the Software, You will abide by the terms of a Master Services Agreement with Hitachi Solutions. Upon subscription to the Software License, and pursuant to the terms of this Agreement, we grant to You a royalty-free, non-exclusive, non-redistributable, non-sublicenseable limited worldwide right and license to use such Software on one production environment and multiple non-production environments for the term specified in writing by Hitachi Solutions. Where You access the Software for demonstration purposes only and do not subscribe to the Software License, the term of the Software License will be for a set number of days as notified in writing by Hitachi Solutions to You and subject to such other restrictions (including, without limitation, a prohibition on use in a production environment) as shall be notified in writing by Hitachi Solutions to You. We reserve all other rights. Hitachi Solutions will retain all ownership of the source code of the Software provided to You, along with all right, title and interest to all intellectual property rights thereto. The Software is protected by copyright, other intellectual property laws and by international treaty provisions. You acknowledge that Hitachi Solutions retains the ownership of any and all patents, copyright, trade secrets, trademarks and any and all other intellectual property rights pertaining to the Software. The license fee is not refundable at any time after the initial purchase, including for a subscription term that is prepaid for the duration of the term. All Software license fees and any other payments including for related professional services must be made up front and Software will not be made available until payment is received in full for the Software license and any other services which You have requested including professional services.
With respect to any information supplied in connection with Hitachi Solutions Software and designated by Hitachi Solutions as confidential, You agree to protect the confidential information in a reasonable and appropriate manner, and use confidential information only to perform Your obligations under this engagement and for no other purpose. This will not apply to information which is: (i) publicly known; (ii) already known to the recipient without any restrictions on use and disclosure; (iii) disclosed to You by a third party without restriction; (iv) independently developed; or (v) disclosed pursuant to legal requirement or order, provided that You give Hitachi Solutions prompt written notice of such requirement and reasonably assist in obtaining an appropriate order of protection. Hitachi Solutions may also mention Your name and provide a general description of the engagement in its client lists or marketing presentations to others. In addition to the foregoing, You acknowledge that the Software contains valuable proprietary information of Hitachi Solutions, including trade secrets of Hitachi Solutions, and You therefore agree that You will not:
(a) decompile, reverse engineer, disassemble or otherwise seek to reduce the object code of the Software to its source code form or otherwise derive the source code or logic therein, except to the extent and for the express purpose required by applicable law, and only if Hitachi Solutions has not or is not willing or able to provide the relevant information to You, or unless Your license provides access to the source code;
(b) alter, modify the Software or create derivative works based on the Software;
(c) use the Software for any third party on a service basis;
(d) sell, transfer, lease, license or sublicense the Software;
(e) allow access to the Software by any person other than as expressly permitted in this End User License Agreement;
(f) remove or evade any technical protection;
(g) combine or distribute the Software in any manner which requires disclosure or distribution of the combined Software in source code form, or distribution at no charge (i.e., open source Software); or (h) publish or provide any results of tests, including without limitation benchmark tests, run on the Software to any third party without Hitachi Solutions’ prior written consent.
Hitachi Solutions warrants that the Software will perform as described in any product documentation provided by Hitachi Solutions. Hitachi Solutions’ sole obligation will be to correct any material non-conformance with this warranty, provided that You give Hitachi Solutions written notice within thirty (30) days after the Software is accepted by You. Hitachi Solutions does not warrant and is not responsible for any third-party products or services (including any other applicable computer hardware and software warranties). Your sole and exclusive rights and remedies with respect to any third-party products or services, including those provided by Microsoft, are against the third-party vendor and not against Hitachi Solutions. Hitachi Solutions’ Software is complex computer Software and Your performance may vary based on Your hardware platform, Software interactions, customizations, configurations, and a variety of other factors. Hitachi Solutions’ Software is not fault tolerant, free from errors, conflicts or interruptions. THIS WARRANTY IS OUR ONLY WARRANTY CONCERNING THE SERVICES, SOFTWARE, AND ANY DELIVERABLE, AND ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
(A) HITACHI SOLUTIONS’S TOTAL LIABILITY TO YOU WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE FEES HITACHI SOLUTIONS RECEIVED FROM YOU FOR THE PORTION OF THE SOFTWARE OR ENGAGEMENT GIVING RISE TO LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT, IN THE CASE WHERE YOU HAVE PURCHASED THE SOFTWARE LICENSE, AND THE COST OF PROVIDING THE SOFTWARE TO YOU WHERE YOU ACCESS THE SOFTWARE FOR DEMONSTRATION PURPOSES ONLY, AND IN EACH CASE WILL NOT INCLUDE ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES OR LOSS (NOR ANY LOST PROFITS, SAVINGS, OR BUSINESS OPPORTUNITY);
(B) YOU WILL INDEMNIFY HITACHI SOLUTIONS, HITACHI SOLUTIONS’S OWNERS, EMPLOYEES, CONTRACTORS, AND AGENTS AGAINST ALL CLAIMS, LOSSES, JUDGMENTS, COSTS, FEES, EXPENSES, DAMAGES AND LIABILITIES (INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS) ASSOCIATED WITH ANY THIRD-PARTY CLAIM, RELATING TO OR ARISING AS A RESULT OF THE SERVICES, YOUR USE OF THE SOFTWARE OR THE ENGAGEMENT OF HITACHI SOLUTIONS;
(C) HITACHI SOLUTIONS WILL NOT BE LIABLE FOR ANY DELAYS OR FAILURES IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND HITACHI SOLUTIONS’ REASONABLE CONTROL;
(D) ANY ACTION AGAINST HITACHI SOLUTIONS IN CONNECTION WITH THIS ENGAGEMENT MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ARISES. NOTHING IN THIS CLAUSE 7 OR OTHERWISE IN THIS END USER LICENSE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR (I) FRAUD, (II) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, or (III) ANY LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
If Your use of the Software is subject to user limitations, Hitachi Solutions shall have the right to request, but not more frequently than annually, a disclosure verifying that the Software is being used in accordance with such user limitations. Hitachi Solutions shall, at any time during the period of this End User License Agreement and for the period of 12 months following its expiry or termination, have the right to audit the utilization of Software upon thirty (30) days written notice in order to confirm the accuracy of the above disclosure; provided, that no more than one such audit may be conducted in any one (1) year period. Any such audit shall be performed during normal business hours at Hitachi Solutions’ expense, provided that You shall bear the cost of such audit if the audit reveals utilization inconsistent with the above disclosure by an underpayment of more than five percent (5%). The party conducting the audit shall sign a confidentiality agreement reasonably acceptable to You.
If any provision of this End User License Agreement shall be held invalid, illegal or unenforceable for any reason, such provision shall be severable and the remainder of this End User License Agreement shall continue in full force and effect. If a court finds that by limiting any such invalid, illegal or unenforceable provision, such provision would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
WITH REGARD TO ANY PAYMENTS MADE BY YOU BY MEANS OF ONLINE PAYMENT METHODS, YOU ACKNOWLEDGE THAT CREDIT CARD PROVIDERS, BANKS, CREDIT CARD PROCESSING COMPANIES, AND GOVERNMENTAL ENTITIES IMPLEMENT AND REQUIRE SPECIFIC PROCEDURES, POLICIES, AND REGULATIONS IN CONJUNCTION WITH CREDIT AND DEBIT CARDS AND SERVICES. YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY THE CREDIT CARD COMPANIES, BANKS, AND/OR PROCESSORS YOU ELECT TO ACCEPT OR UTILISE, AS WELL AS COMPLIANCE WITH ALL APPLICABLE GOVERNMENTAL RULES AND REGULATIONS. MAINTENANCE AND SUPPORT AGREEMENTS DO NOT INCLUDE COMPLIANCE WITH CREDIT AND DEBIT CARD RULES, REGULATIONS AND LAWS. YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE THEREWITH.
This End User License Agreement may be executed in counterparts, each of which when executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Electronic acceptances and signatures shall be treated as originals.
You acknowledge that the Hitachi Solutions Software may contain a Software key to prevent unauthorized installation and may contain devices to monitor compliance with Your license obligations under this End User License Agreement.
You acknowledge that Software is subject to such export control laws, regulations, orders, import laws and national security controls as may be imposed from time to time by any relevant government or regulatory authority ("Export Laws"). You agree to comply fully, at Your own expense, with all applicable Export Laws. You will defend, indemnify, and hold harmless from and against all fines, penalties, liabilities, damages, costs and expenses incurred by Hitachi Solutions as a result of any violation of this clause 12 by You or any of Your agents, sub-contractors or employees.
Neither party to this End User License Agreement nor any of their affiliates has taken and neither will take any actions in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any government official (including any officer or employee of a government or government-controlled entity or instrumentality, or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or official thereof, or candidate for political office, all of the foregoing being referred to as ‘Government Officials’) or to any other person while knowing that all or some portion of the money or value was or will be offered, given or promised to a Government Official for the purposes of obtaining or retaining business or securing any improper advantage or influencing official action. No part of the payments received by You from Hitachi Solutions Ltd will be used for any purpose which would cause a violation of law, including, without limitation, the anti-bribery laws of any country or jurisdiction in which Hitachi Solutions Ltd operates.
(a) No term of this Agreement will be deemed waived, and no breach of this Agreement excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent;
(b) The terms of this Agreement which by their nature are to survive this Agreement will survive its expiration or termination;
(c) This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the United States. Each party irrevocably agrees that the state or federal courts residing in Orange County, California shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation;
(d) You may not assign or transfer or propose to assign or transfer a right or obligation under this End User License Agreement;
(e) Waiver of the breach of any provision of this Agreement will not operate or be construed as a waiver of any other or subsequent breach; no failure or delay in exercising any right, remedy or power under this Agreement will operate as a waiver of any other right, remedy or power;
(f) You represent and warrant to Hitachi Solutions that You will at all times comply with all applicable laws, rules, regulations and ordinances in connection with Your use of the Software; (g) All notices under this End User License Agreement shall be in writing.
The headings herein are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
This Agreement (and the documents referred to in it) contains the entire understanding of the Parties pertaining to the use of Hitachi Solutions Software and replaces and supersedes all previous contracts written or oral, between the Parties pertaining to the matters contained herein. Hitachi Solutions reserves the right to update, change, or otherwise modify this Agreement from time to time in its sole discretion. Hitachi Solutions will provide notice of any such changes by posting any updated, new or additional terms to the Agreement on the Hitachi Solutions pages of the Microsoft Azure Marketplace website and updating the ‘Last Updated’ date above. You are encouraged to check the site frequently for any updates to ensure You understand the terms of the Agreement. If You do not agree to the updated or additional terms, then You must immediately stop using the Software and contact Hitachi Solutions in writing. This End User License Agreement is effective until such time as it may be superseded by the parties entering into a Master Services Agreement for the use of the Software and related consultancy services on terms which expressly state that they supersede the terms of this End User License Agreement; otherwise, this End User License Agreement shall control in the event of a conflict between this Agreement and any Master Services Agreement. Hitachi Solutions may terminate this End User License Agreement with immediate effect by notice to You where You are in breach of any of the terms. Upon termination of this End User License Agreement for any reason, You will immediately discontinue all use of the Software.