HEWLETT PACKARD ENTERPRISE SOFTWARE END USER SUBSCRIPTION AGREEMENT

BY CLICKING A BOX INDICATING LICENSEE'S ACCEPTANCE, BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY USING THE SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

Scope. This End User Subscription Agreement (“Agreement”) sets forth the exclusive terms and conditions under which Hewlett Packard Enterprise (“Licensor”) grants a limited use license to the end user (“Licensee”) of the Licensor's software (the “Software”) for a specific duration (“Subscription Period”). This Agreement includes supporting material accompanying the software or referenced by Licensor, which may be software license information, additional license authorizations, software specifications, published warranties, supplier terms, open source software licenses, product lists, hardware or software specifications, standard or negotiated service descriptions, data sheets and their supplements, statements of work (SOWs), published warranties, data protection and security addendum, service level agreements, and similar content ("Supporting Material"). Additional license authorizations are at: http://www.hpe.com/software/SWLicensing. “Order” means the accepted order including any Supporting Material which the parties identify as incorporated either by attachment or reference. Any conflicting term or condition, including those that may be embedded in any purchase order, order acknowledgment, invoice or other forms used by the parties, shall be of no force or effect unless agreed to in a writing by the party against which any such term or condition is asserted.

Grant of License. Licensor hereby grants Licensee a nonexclusive, nontransferable license without the right to sublicense, to install and internally use the Software solely in conjunction with Licensee's information technology network and for no other purpose. Licensee must limit access to and use of the Software by only its employees with the need to use the Software for the foregoing purpose (“Authorized Users”).
Subscription Types and Term. Unless otherwise specified in the quotation, the Subscription Period will begin on the date of Order fulfillment to Licensor and will end 1-year, 2-years, 3-years, 4-years, or 5-years from the Order fulfillment date depending on the subscription part number, type, description, and associated subscription term. ALL SUBSCRIPTIONS ARE NON-CANCELLABLE.
1. Universal Subscription. A Universal Subscription allows the Software to be deployed on any server or virtual machine from any vendor on premise and in the public cloud. The Universal Subscription does not include the right to certain modules which may be sold separately.
2. Select Subscription. A Select Subscription can only be purchased in conjunction with the specific Select for Licensor hardware offerings. Select Subscriptions can only be deployed on those specific Select for Licensor hardware offerings, either natively or in virtual machines, and in a hybrid cloud cluster that includes those specific Select for Licensor hardware offerings. In addition, no more than 30% of the quantity of Select Subscriptions deployed on those specific Select for Licensor hardware offerings can be deployed in a public cloud as part of Licensee's hybrid cloud cluster. If Licensee needs a hybrid cloud cluster with more than 30% of the quantity of Select Subscriptions deployed on those specific Select for Licensor hardware offerings deployed in a public cloud, Licensee will need to purchase Universal Subscriptions for those licenses greater than this 30% cap. The Select Subscription does not include the right to certain modules which may be sold separately.
The HPE Ezmeral Container Platform SKUs and the HPE Ezmeral Machine Learning Ops SKUs shall provide entitlement to use the HPE Ezmeral Data Fabric product (formerly known as MapR Data Platform) up to the number of licensed Cores (as defined below) and terabytes of Storage Capacity (as defined below). As such, the number of Cores and terabytes of Storage Capacity used for the HPE Ezmeral Data Fabric deployment and/or an HPE Ezmeral Container Platform deployment cannot exceed the total licensed Cores.
Each license allows the customer to deploy the HPE Ezmeral Container Platform on one Core and 2 terabytes of Storage Capacity. The customer must purchase more licenses if they exceed the allowable amount of Cores or Storage Capacity. As used in this Agreement, Core means a part of a CPU that executes a single stream of compiled instruction code. Each physical processor contains smaller processing units called physical CPU cores. Some processors have two cores, some four, some eight, and so on. Core capacity represents the total number of cores available within a given system. The number of cores is counted as the number of logical cores presented to the product guest OS. For licensing purposes, the number of cores on a given Ezmeral Container Platform host is the number of unique cores available to the kernel in the OS on which the Ezmeral Container Platform software is directly installed, regardless of the number of threads in each core. It equals the product of Core(s) per socket and Socket(s), as shown in the output of the lscpu command. This applies whether the OS is running directly on a bare metal host, or a virtual machine. Hyperthreading in the OS is ignored (i.e, if hyperthreading is enabled in the Ezmeral Container Platform’s OS, causing 8 vCPUs to exist on a 4-core host, that host will only require 4 cores to be licensed). Conversely, if Ezmeral Container Platform software is installed on a virtual machine on an overprovisioned hypervisor, and the guest OS reports more cores than physically exist on the underlying bare metal host, each of those cores must still be licensed. Storage Capacity means the total storage capacity (HDD & SSD) allocated to and managed by HPE Products, measured in Terabytes (TB) of raw capacity. Includes space for data, data replication, erasure coding, snapshots, metadata, logs and other data that is stored in HPE Data Fabric.
Ownership of Software. All right, title, and interest in and to the Software and all modifications and derivatives thereof, including all patent, copyright, trade secret, and other intellectual property rights therein resides and will reside in Licensor and its licensors, as applicable. The Software is licensed to Licensee by Licensor. Licensee acknowledges and agrees that the Software is copyrighted and contains materials that are valuable trade secrets of the Licensor and are protected by copyright, trade secret, and other laws and international treaty provisions relating to proprietary rights. Licensee may not remove, deface, or obscure any of Licensor's or its suppliers' proprietary rights notices on or in the Software or on output generated by the Software. Licensee may not, nor may Licensee permit, any third party to: (a) decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code, algorithms, or underlying ideas, design, or architecture of the Software; (b) modify, translate, or create derivative works of the Software; (c) use the Software to provide services to third parties, (d) may not download and use patches, enhancements, bug fixes, or similar updates unless you have a license to the underlying Software. However, such license does not automatically give you a right to receive such updates and Licensor reserves the right to make such updates only available to Licensees with support contracts, (e) may not copy Software or make it available on a public or external distributed network or (f) rent, lease, loan, distribute, transmit, assign, or transfer the Software to any third party, or provide access to or use of the Software by any third party, including any agent of Licensee's other than Authorized Users. Without Licensor's prior written consent, Licensee shall not disclose any information relating to features, performance, or operation of the Software (including any benchmarking or other testing results) to any third party, nor use any of such information other than for purposes permitted under the section titled Section 1 above. All rights not specifically granted in this Agreement are reserved by Licensor. Licensee acknowledges and agrees that any unauthorized use, transfer, sublicensing, or disclosure of the Software, or other violation of this License, would cause irreparable injury to Licensor, and under such circumstances, Licensor shall be entitled to equitable relief, without posting bond or other security, including but not limited to, preliminary and permanent injunctive relief. Licensor may upon written notice terminate this Agreement if the forgoing restrictions are violated or the fees are not paid when due.
Feedback. All questions, comments, or feedback provided by Licensee to Licensor regarding the Software and any other products, services, or materials provided by Licensor (collectively, “Feedback”) will be deemed the property of the Licensor. Licensor will have no obligation to Licensee or any third party with respect to such Feedback, and be free to use such Feedback in any form or manner and for any purpose and without payment of any consideration to Licensee or any third party. All rights, title, and interest in and to the Software, the Feedback, accompanying materials, and all proprietary information contained therein, are owned by Licensor and are protected by copyright, trademark, patent and trade secret law, and international treaties. Licensee will transfer and assign, and hereby does irrevocably transfer and assign, to Licensor all right, title, and interest, including all intellectual property rights that Licensee may have or acquire in the Feedback, and Licensee will provide reasonable assistance to Licensor to effect such assignment.
Licensee-provided Data. Licensee is solely responsible for the content created or placed into a Licensor system during Licensee's access or use of Software (“Licensee-provided Data”). As between Licensor and Licensee, Licensee is and will remain the sole and exclusive owner of all right, title, and interest in and to all Licensee-provided Data. Licensee hereby provides to Licensor all necessary rights to Licensee-provided Data to enable Licensor to provide the Software and any related services. Licensor will use Licensee-provided Data only as necessary to provide the Software, technical support, or as otherwise required by law.
Personal Data. Where legitimate business purposes require Licensor to collect and process business contact information relating to Licensee's employees or other individuals representing Licensee, Licensor, as a data controller, will process such personal data using appropriate technical and organizational measures and in compliance with its Privacy Statement (https://www.hpe.com/us/en/legal/privacy.html) and applicable laws. Where Licensor discloses personal data relating to its employees or other individuals representing Licensor to Licensee or where such persons provide their personal data directly to Licensee, Licensee will process such personal data using appropriate technical and organizational measures in compliance with Licensee's privacy policies and applicable laws. Where Licensor agrees to process personal data on behalf of Licensee, Licensor, as a data processor, will process such data only as permitted under this Agreement, including Supporting Materials, and in compliance with applicable laws. In the event international data transfers trigger the requirements for an EU Model Contract, Licensee and its applicable affiliates (i) authorize Licensor to execute the EU Model Contract with Licensor's affiliates on Licensee's behalf or (ii) will execute EU Model Contracts directly with the Licensor and its applicable affiliates.
Consent to Use of Data. Licensee agrees that Licensor may collect and use technical data and related information, including but not limited to technical information about Licensee's computer system, application software, peripherals that is gathered periodically to facilitate the provision of software updates, product support and other services related to the Software. Licensor may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or to provide services or technologies.
Fees. The license granted hereunder is subject to Licensee's timely payment of fees. Licensee is responsible for payment of sales, use, VAR, import, and all other transaction taxes and fees except for taxes based on Licensor's or its reseller's net income. If Licensee is required by a governmental taxing authority to withhold an amount from any payment due hereunder and pay such amount to the governmental authority, the prices will be grossed-up so that the net payment equals the original price.
Intellectual Property Rights Infringement. Licensor will defend and/or settle any claims against you that allege that Licensor-branded software as supplied under this Agreement infringes the intellectual property rights of a third party. Licensor will rely on Licensee's prompt notification of the claim and cooperation with Licensor's defense. Licensor may modify the software so as to be non-infringing and materially equivalent, or Licensor may procure a license. If these options are not available, Licensor will refund to Licensee the remaining prepaid amount and Licensee will discontinue further use of the license. Licensor is not responsible for claims resulting from any unauthorized use of the Software.
Support and Maintenance. Subject to the terms and conditions of this Agreement, Licensor shall make available to Licensee any updates to the Software developed by or on behalf of Licensor during the term of this Agreement that are available for distribution (as determined by Licensor). In the event Licensor provides any additional services to the Licensee which are not expressly included in this Agreement, Licensee shall pay Licensor for such additional services at agreed upon market rates, and enter into appropriate additional Agreements for such services.
Disclaimer; Limitation of Liability. LICENSEE'S USE OF THE SOFTWARE IS AT ITS SOLE RISK. LICENSOR WARRANTS THAT ITS BRANDED SOFTWARE PRODUCTS WILL BE FREE OF MALWARE AT THE TIME OF DELIVERY. LICENSOR(S) EXPRESSLY DISCLAIM ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, NOR DOES THE LICENSOR PROVIDE ANY WARRANTY WITH RESPECT TO VIOLATION OF THE RIGHTS OF THIRD PARTIES. IN ADDITION, LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL LICENSOR BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), OR FOR THE COST OF PROCURING OTHER SOFTWARE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY TO LICENSEE UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO LICENSOR FOR THE RELEVANT SOFTWARE, EXCEPT FOR AMOUNTS IN SECTION 12 ("INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT"). THIS PROVISION DOES NOT LIMIT EITHER PARTY'S LIABILITY FOR: UNAUTHORIZED USE OF INTELLECTUAL PROPERTY, DEATH OR BODILY INJURY CAUSED BY THEIR NEGLIGENCE; ACTS OF FRAUD; WILLFUL REPUDIATION OF THE AGREEMENT; OR ANY LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
Confidentiality. The Software, any related benchmark or performance tests, and information regarding Licensor's business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information is considered Licensor's “Confidential Information”. Licensee shall protect the Confidential Information from unauthorized dissemination and use with the same degree of care that Licensee uses to protect its own like information and, in any event, will use no less than a reasonable degree of care in protecting such Confidential Information. Licensee will use the Confidential Information only for those purposes expressly authorized in this Agreement. Licensee will not disclose to third parties the Confidential Information without the prior written consent of Licensor.
Termination. This Agreement shall be effective on the date of receipt of the Licensee's Purchase Order and shall expire and/or terminate (i) if Licensee breaches its obligations under this Agreement or any applicable Supporting Materials, (ii) at the end of the applicable Subscription Period or (iii) to comply with applicable laws or regulations. Upon notice of such event, Licensee's license and rights under this Agreement will terminate. Immediately upon any termination, Licensee must promptly destroy the Software, including all copies and portions thereof, in its possession or under its control and certify such destruction in writing to Licensor. Any terms in this Agreement which by their nature extend beyond termination or expiration of this Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.
General.
1. Assignment. Licensee may not assign this Agreement without prior written consent of Licensor, payment of transfer fees and compliance with Licensor's software license transfer policies. Authorized assignments will terminate Licensee's license to the Software and you must deliver software and documentation and copies thereof to the assignee. The assignee will agree in writing to this Agreement.
2. U.S. Government. If the Software is licensed to you for use in the performance of a U.S. Government prime contract or subcontract, you agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Licensor's standard commercial license.
3. Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import, or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the products to any such country. Licensor may suspend its performance under this Agreement to the extent required by laws applicable to either party.
4. Audit. Licensor may audit you for compliance with the software license terms. Upon reasonable notice, Licensor may conduct an audit during normal business hours (with the auditor's costs being at Licensor's expense). If an audit reveals underpayments then you will pay to Licensor such underpayments. If underpayments discovered exceed five (5) percent, you will reimburse Licensor for the auditor costs.
5. Open Source Components. To the extent the Supporting Material includes open source licenses, such licenses shall control over this Agreement with respect to the particular open source component. To the extent Supporting Material includes the GNU General Public License or the GNU Lesser General Public License: (a) the software includes a copy of the source code; or (b) if you downloaded the software from a website, a copy of the source code is available on the same website; or (c) if you send Licensor written notice, Licensor will send you a copy of the source code for a reasonable fee.
6. Notices. Written notices under this Agreement may be provided to Licensor via the method provided in the Supporting Material.
7. Governing Law. This Agreement will be governed by the laws of the country where Licensor accepts the order, excluding rules as to choice and conflict of law. You and Licensor agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
8. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
9. Entire Agreement. This Agreement represents Licensor entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If Licensor does not exercise its rights under this Agreement, such delay is not a waiver of its rights.
Australian Consumers. If you acquired the software as a consumer within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 (Cth) then despite any other provision of this Agreement, the terms at this URL apply: http://www.hpe.com/software/SWLicensing.
Russian Consumers. If you are based in the Russian Federation and the rights to use the software are provided to you under a separate license and/or sublicense agreement concluded between you and a duly authorized Licensor partner, then this Agreement shall not be applicable.

Definitions

Core Capacity: HPE Ezmeral Runtime is licensed by the number of unique cores available to the kernel in the OS on which the HPE Ezmeral Runtime software is directly installed, regardless of the number of threads in each core.
Storage Capacity: Total storage capacity (HDD & SSD) allocated to and managed by HPE Products, measured in Terabytes (TB) of raw capacity. Includes space for data, data replication, erasure coding, snapshots, metadata, logs and other data that is stored in HPE Data Fabric.