Revised July 3, 2012
PLEASE READ CAREFULLY: THIS CUSTOMER AGREEMENT (“Customer Agreement”) is between the customer who orders Services (“Customer”) and the applicable Hewlett-Packard entity (“HP”) identified below:
For Customers whose principal place of business is located in the United States of America, “HP” is defined as Hewlett-Packard Company.
For Customers whose principal place of business is located outside of the United States of America, “HP” is defined as Hewlett-Packard Galway Ltd.
Customer’s use of and access to Services is governed by this Customer Agreement, HP’s Acceptable Use Policy, and the terms of Customer’s Order (collectively referred to as the “Agreement”).
This Agreement is the complete and exclusive agreement between Customer and HP regarding its subject matter and supersedes and replaces any agreement, understanding, or communication, whether written or oral, prior or contemporaneous regarding such subject matter.
BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS CUSTOMER AGREEMENT MAY BE DISPLAYED, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1. DEFINED TERMS. The following words used in this Customer Agreement have the following meanings:
“Acceptable Use Policy” or “AUP” means HP’s Acceptable Use Policy, as HP may amend from time to time.
“Beta Period” means the period of time before HP makes available the general release version of any services offered to Customer by HP, wherein access to such services is via an HP web site associated with or part of the Services.
"Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
“Confidential Information” means information, technology or services disclosed or made available by HP to Customer that Customer should reasonably understand to be confidential, including: (i) unpublished or otherwise not publicly available or accessible prices and other terms of service, audit and security reports, product development plans, data center designs, server configuration designs, services, and other proprietary information or technology; and (ii) information that is marked or otherwise designated as confidential.
“Content” means any software, online service, feature or technology, data or other content that Customer, Customer’s employees, Customer’s contractors, and Customer’s customers and end users (collectively, “Service Users”) may provide to HP pursuant to this Agreement. Content includes, but is not limited to, any of the foregoing that Service Users (i) upload to the Services, and/or (ii) create and/or modify using the Services.
“Documentation” means any documentation which HP makes available to Customer and is associated with the Services, including URLs for websites, technical information, policies or terms contained in or linked to by webpages or applications associated with the Services.
“Feedback” means any and all suggestions, comments, improvements, or other feedback about the Services that anyone provides to HP either directly or indirectly.
“Order” means either: (i) Customer’s request for or configuration of Services, where such request for or configuration of Services is made via a web site associated with or part of the Services, or (ii) any other written order (either in electronic or paper form) that HP provides to Customer that describes the Services Customer is purchasing, and that is signed by Customer, either manually or electronically. For the avoidance of doubt, “Order” does not include, during the Beta period, Customer’s request for access to the Services prior to receiving an invitation from HP to create an account associated with the Services during the Beta Period.
“Personally Identifiable Information” or “PII” means any data, either alone or in combination with other information, by which a natural person can be identified or located, or that can be used to identify or locate a natural person.
“Programmatic Interface” means any code, method, or process used to interface with the Services, including an application programming interface (“API”), command line interface (“CLI”), language binding or wrapper.
“Services” means any services, websites, platforms, portals, Documentation, and software associated with HP Helion Public Cloud and any associated services, websites, platform, and portals (including Programmatic Interfaces, software development kits (“SDKs”) and any other code or capability provided by HP) described in or provided to Customer as a result of the Order.
2.1 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to enter into this Agreement. If Customer is entering into this Agreement on behalf of an employer, company, or other legal entity, Customer must have the legal right and authority to enter into this Agreement and bind that entity to this Agreement.
2.2 Account Creation. Customer must create an account associated with the Services in order to be eligible to receive the Services.
3. HP’S OBLIGATIONS.
3.1 Provision of Services. Contingent on HP’s acceptance of Customer’s Order and subject to this Agreement, HP agrees to provide the Services. HP may change, discontinue, add, modify, re-price or remove features or functionality from the Services from time to time.
3.2 Security. Without limiting Sections 6 and 10, HP will use commercially reasonable efforts to implement reasonable and appropriate security measures to assist Customer to secure Customer’s Content.
3.3 Support. Support will be provided as detailed here.
3.4 Future Availability. With regard to Services made available during the Beta Period, while HP intends to commercially release the Services, HP reserves the right at any time to not release the Services or, even if released, to alter prices, features, specifications, capabilities, functions, release dates, general availability, or other characteristics of the Services.
3.5 Service Levels. The Service Level Agreement(s) (“SLAs”) listed here are part of this Agreement for those Services Customer is buying.
4.1 Collection of PII. Customer’s access to the Services is via an HP-controlled website. As such, Customer’s interaction with the website, and any PII that may be collected by the website, is governed by the HP Online Privacy Statement.
4.2 HP Access to Content. The parties acknowledge that the structure of the HP systems used in connection with the Services makes it technically possible for HP to access Content; however, the nature of the Services is such that direct access to Content by HP is not intended. In the event HP is required to access Content, HP will not use or disclose Content to non-HP third parties except: (i) with consent or as otherwise directed or instructed by Customer; (ii) in furtherance of or in connection with performing Services pursuant to this Agreement; (iii) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (iv) to comply with any applicable law, regulation, subpoena, discovery request or court order; (v) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; (vi) to enforce/protect the rights and properties of HP or its affiliates or subsidiaries; or (vii) with the prior informed consent of the data subject about whom the PII pertains.
4.3 Data Controller. Customer is and shall remain the data controller of the Content it uploads or provides as part of the Services. HP is a service provider to Customer and has the role of data processor. HP does not own or otherwise act as data controller of the Content. It is Customer’s responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Content which is uploaded in or provided to the Services.
4.4 Cross Border Data Transfers. For Customers that are required to comply with international data protection laws and regulations governing the international or cross-border data transfer of PII, and who are not using the Services’ content delivery network option, please be advised that the data centers in which the infrastructure for the Services and Content are housed are located in the United States of America and any obligations of HP pursuant to this Agreement may be performed by any HP company, subsidiary, affiliate or authorized third party worldwide.
For Customers that are required to comply with international data protection laws and regulations governing the international or cross-border data transfer of PII, and who are using the Services’ content delivery network option, please be advised that: (i) the data centers in which the infrastructure for that portion of the Services and Content associated with the content delivery network option are housed are located globally; and (ii) the data centers in which the infrastructure for the Services and Content which are not associated with the content delivery network option are housed are located in the United States of America. Any obligations of HP pursuant to this Agreement may be performed by any HP company, subsidiary, affiliate or authorized third party worldwide.
5. USE OF AND ACCESS TO THE SERVICES.
5.1 Use and Access. Subject to the terms and conditions of this Agreement, for the duration of the term of this Agreement, HP hereby grants Customer a non-exclusive, non-transferable, non-sublicenseable (except to the extent required to exercise rights under Section 5.1(ii)), revocable license in the Services solely to: (i) use and access the Services for internal purposes; and (ii) use the Services to create, offer and provide services created by Customer for access and use by Customer’s customers and end users (“Customer Offering”). Customer may access the Services via the online control panel, or via a Programmatic Interface that HP provides to Customer. HP may modify the Services, its control panel or Programmatic Interfaces at any time, or may transition to new Programmatic Interfaces. This Agreement shall supersede any license terms included with the code in the file named “COPYING” or “LICENSE” or like caption in the Programmatic Interfaces, except where such code is governed by an open source license.
5.2 Resale of Services. Customer may not resell the Services to Customer’s customers and end users except as provided in Section 14 of this Agreement.
6. CUSTOMER OBLIGATIONS AND REPRESENTATIONS AND WARRANTIES.
6.2 Representations and Warranties. Customer represents and warrants it has the full power and authority to enter into this Agreement and to grant HP the rights granted herein. Customer represents and warrants that the Content does not and shall not violate or infringe any intellectual property right of any third party.
6.3 Confidentiality. Customer agrees not to use HP’s Confidential Information except in connection with Customer’s authorized use of the Services. Customer agrees not to disclose HP’s Confidential Information to any third person or party for a period of five (5) years following the termination or expiration of this Agreement except where the Confidential Information: (i) was in Customer's possession prior to receipt from HP; (ii) is publicly known or readily ascertainable by proper means; (iii) is rightfully received by Customer from a third party without a duty of confidentiality; (iv) is disclosed by HP to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by Customer; or (vi) is disclosed by Customer with HP’s prior written approval. Customer will provide reasonable prior notice to HP and will request a protective order if Customer is required to reveal the Confidential Information under a subpoena, court order or other operation of law.
7. FEES AND TAXES.
7.1 Fees. Customer agrees to pay the fees charged by HP and comply with the payment procedures and terms found here.
7.2 Taxes. Unless otherwise stated, HP’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its use of Services, excluding taxes based solely on HP’s net income or property. If HP has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7.2, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides HP with a valid tax exemption certificate authorized by the appropriate taxing authority or complies with the additional terms as outlined here.
8. INTELLECTUAL PROPERTY.
8.1 Content. Customer hereby grants and agrees to grant to HP, under all intellectual property rights embodied in the Content, a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to use, import, distribute, modify and distribute modifications of, perform, create and distribute derivative works of, copy, and display Content, solely in connection with HP’s provision of Services (including support of Services) to Customer. The license granted in this Section 8.1 includes the right of HP to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of HP to achieve the foregoing. For purposes of this Section 8.1 only, Content does not include Feedback.
8.2 Trademarks. Customer hereby grants and agrees to grant to HP a non-exclusive, irrevocable, worldwide, royalty-free, fully paid-up license to use Customer’s trademarks, marks, logos or trade names as provided in the Content, solely in connection with HP’s provision of Services (including support of Services) to Customer. The license granted in this Section 8.2 includes the right of HP to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of HP to achieve the foregoing.
8.3 Feedback. HP shall own all right, title and interest in and to the Feedback. Customer hereby irrevocably assigns to HP all right, title, and interest in and to the Feedback and agrees to provide HP with any assistance HP may request to document, perfect, and maintain HP’s rights in the Feedback.
9. TERM, SUSPENSION AND TERMINATION.
9.1 Term. The term of this Agreement shall commence on the date that HP first accepts Customer’s Order and shall continue until terminated as provided in this Section 9.
9.2 Suspension. HP may suspend provision of Services to Customer without liability if: (i) HP reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of this Agreement; (ii) Customer does not cooperate with HP’s investigation of any suspected violation of this Agreement; (iii) HP believes that Services provided to Customer have been accessed or manipulated by a third party without Customer’s consent or in violation of this Agreement; (iv) HP reasonably believes that suspension of the Services is necessary to protect HP’s network, HP’s other customers, or others in general; (v) a payment for the Services is overdue by more than thirty (30) days; (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of HP or any other HP customer; (vii) HP reasonably believes that the use of the Services by Customer may expose HP, its affiliates, or any third party to liability; or (viii) suspension is required by law. HP will give Customer reasonable advance notice of a suspension under this Section 9.2 and a chance to cure the grounds on which the suspension are based, unless HP determines, in HP’s reasonable commercial judgment, that either suspension on shorter or contemporaneous notice or immediate suspension without notice is necessary to protect HP, its other customers, or any third party from operational, security, or other risk or the suspension is ordered by a court or other judicial body. If the suspension was based on Customer’s breach of Customer’s obligations under this Agreement, then HP may continue to charge Customer the fees for the Services during the suspension, and may charge Customer a reasonable reinstatement fee upon reinstatement of the Services, which shall be at HP’s sole discretion.
9.3 Termination for Convenience. Customer may terminate this Agreement for convenience at any time. If Customer terminates this Agreement for convenience, Customer shall pay HP all amounts that would be due within forty-five (45) days after such termination. After the Beta Period, HP may terminate this Agreement for convenience at any time upon thirty (30) days advance written notice.
9.4 Beta Period. During the Beta Period, HP may terminate this Agreement immediately without notice at HP’s sole discretion.
9.5 Termination for Breach. HP may terminate this Agreement if: (i) HP discovers that the information Customer provided to HP about Customer’s proposed use of the Services was materially inaccurate or incomplete; (ii) if Customer is an individual and was not at least 18 years old or otherwise did not have the legal capacity to enter into this Agreement at the time Customer submitted the Order for Services, or if Customer is an entity or fiduciary, the individual submitting the Order for Services for Customer or the end user did not have the legal right or authority to enter into this Agreement on behalf of the person represented to be the customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within thirty (30) days of HP’s written notice; (iv) Customer uses the Services in violation of this Agreement and fails to remedy the violation within thirty (30) days of HP’s written notice; (v) Customer uses the Services in violation of this Agreement and, in HP’s reasonable commercial judgment, termination is necessary to protect HP, its other customers, or any third party from operational, security, or other risk; (vi) Customer’s account has been suspended for thirty (30) days or more; or (vii) Customer fails to comply with any other provision of this Agreement and does not remedy the failure within thirty (30) days of HP’s notice to Customer describing the failure. HP will give Customer written notice of termination under this Section 9.5 unless HP determines, in HP’s reasonable commercial judgment, that immediate termination without notice is necessary to protect HP, its other customers, or any third party from operational, security, or other risk. Customer may terminate this Agreement for breach upon written notice to HP if HP materially fails to meet any other obligation stated in this Agreement and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure.
9.6 Access to Data. At HP’s sole discretion, Customer may not have access to Content stored in the Services during a suspension, and HP shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension. Unless HP determines otherwise, or Customer requests deletion of Content, Customer will have access to Content following termination or expiration of this Agreement for at least fourteen (14) days after the effective date of termination or expiration, and HP shall not be liable to Customer for any damages or losses Customer may incur as a result of not having access to Content.
9.7 Effect of Termination. Upon expiration or termination of this Agreement, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by HP and any other materials provided to Customer by HP in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Customer must also return or, at HP’s request, destroy any portion of the Services in Customer’s possession. HP will have no obligation to provide any transition services or access to data except as expressly stated in Section 9.6 above.
9.8 Survival. All provisions that by their nature are intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
10. UNAUTHORIZED ACCESS TO CONTENT OR USE OF THE SERVICES OR CUSTOMER OFFERING. HP is not responsible to Service Users or any third party for unauthorized access to Service User’s Content or the unauthorized use of the Services or Customer Offering by a third party.
11. DISCLAIMERS. HP does not promise that the Services will be uninterrupted, error-free, or completely secure. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of SERVICE USER’S privacy, confidential information, Content, and/or property. HP has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, HP disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and noninfringement. Customer is solely responsible for the suitability of the services chosen. The Services are provided “AS IS”. Any voluntary ACTIVITIES HP may perform for Customer at Customer’s request and without any additional charge are provided “AS IS”.
12. INDEMNIFICATION. If HP, HP employees, agents, affiliates, subsidiaries, or suppliers (the “HP Indemnitees”) are faced with a legal claim by a third party arising out of Service User’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by this Agreement, misappropriation or infringement of a third party’s intellectual property right, or violation of this Agreement (“Third Party Claim”), then Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages, award, fine, settlement, or other amount (“Losses”) that is imposed on the HP Indemnitees as a result of the claim. Customer will hold HP harmless from and against any and all Losses arising out of or in connection with any Third Party Claim. Customer’s obligations under this Section 12 include claims arising out of the acts or omissions of Customer employees, any other person to whom Customer has given access to the Services, Customer Offering and/or Content, and any person who gains access to the Services, Customer Offering and/or Content as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. If Customer resells the Services as permitted under this Agreement or provides a Customer Offering, Customer’s obligations under this Section 12 stated above also include any claim brought by Customer’s customers and end users arising out or related to: (i) Customer’s sale or license of the Customer Offering, Services or Content; (ii) Customer’s customers or end user’s use of the Customer Offering, Services or Content; and/or (iii) loss of or damage to Customer’s customers’ or end users’ Content. If any portion of the Content is, or is in Customer’s opinion is likely to be, held to constitute an infringing item, Customer shall at its election and expense either: (i) procure the necessary rights to that portion of Content alleged to be infringing; (ii) replace the alleged infringing portion with a non-infringing equivalent; (iii) modify the alleged infringing portion to make it non-infringing; or (iv) immediately terminate the use of the allegedly infringing portion of the Content.
In connection with any Third Party Claims pursuant to this Section 12, HP will (i) give Customer prompt written notice of such claim; and (ii) cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such claim and Losses arising out of such claim.
13. LIMITATION ON DAMAGES. IN NO EVENT WILL HP’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT CUSTOMER PAID TO HP UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. TO THE FULLEST EXTENT PERMITTED UNDER LAW, HP WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING LOST PROFITS, LOSS OF INCOME, REVENUE, GOODWILL, REPUTATION OR SAVINGS, LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA OR SOFTWARE RESTORIATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES, ARISING WITH RESPECT TO: (i) USE OR INABILITY TO USE THE SERVICES OR CUSTOMER OFFERING; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION, DAMAGE, DESTRUCTION OR LOSS OF SERVICE USERS’ CONTENT, DATA, OR TRANSMISSIONS BY THIRD PARTIES; AND/OR (iv) ANY OTHER MATTER RELATING TO THE SERVICE, THE CUSTOMER OFFERING, OR ARISING UNDER THIS AGREEMENT.
14. THIRD PARTIES. In order to resell Services, Customer must enter into an amendment to this Agreement to include certain terms that are applicable to the resale of the Services, which terms are located here. Unless otherwise agreed, HP will provide support only to Customer and not to any other person Customer authorizes to use the Services. There are no third party beneficiaries to this Agreement, meaning that third parties do not have any rights against either HP or Customer under this Agreement.
15.1 Changes to this Agreement. HP may modify this Agreement at HP’s sole discretion. Any such modified Agreement shall be posted or linked to here or as provided in Section 15.3. Any such changes made during the term of this Agreement will become effective thirty (30) days after the date HP posts, links to, or provides notice of such modified Agreement. Customer’s continued use of the Services after such thirty-day period shall constitute acceptance of such modified Agreement. Notwithstanding the foregoing in this Section 15.1, if HP lowers any fees, such change in fees shall be effective immediately upon such change being posted here or as provided in Section 15.3.
15.2 Acquired Rights Directive. If Customer employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against HP under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to lawfully either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify HP from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with HP’s standard generally-applicable policy.
15.3 Notices. Customer routine communications regarding the Services should be sent to Customer’s HP Cloud account team using Customer HP’s Cloud control panel. If Customer wants to give HP a notice regarding termination of this Agreement for breach, indemnification, or other non-routine legal matter, Customer should send it by electronic mail and first-class United States mail to:
Data Center TXE01
3301 Hibbetts Road
Austin, Texas 78725 USA
Care of: HP Helion Public Cloud Support
HP’s routine communications regarding the Services and legal notices will be sent to the individual(s) Customer designates as Customer contact(s) on Customer’s account either by electronic mail, United States mail, or overnight courier, except that HP may give notice of an amendment to or new version of this Agreement by posting the notice on Customer HP Cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
15.4 Export laws. HP reserves the right to locate the infrastructure for providing the Services in any country or location permitted under applicable laws and regulations. Data Customer, or any third party authorized by Customer, sends to or through the Services may be subject to US and other national export and import laws and regulations. If Customer, or any third party authorized by Customer, chooses to use these Services, Customer and any third party authorized by Customer do so on their own initiative and are responsible for compliance with all applicable laws and regulations, and for obtaining required export and import authorizations, where applicable. Customer, and any third party authorized by Customer, may not, in violation of applicable laws and regulations, transfer, or authorize the transfer, of any Services (a) into U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using these Services, Customer represents and warrants that Customer or any third party authorized by Customer is not located in, under the control of, or a national or resident of any such country, or is included on any such government list. In addition, Customer, and any third party authorized by Customer, may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations. Customer, and any third party authorized by Customer, will not transfer to or through the Services any data, materials or other items controlled for export under the International Traffic in Arms Regulations (“ITAR”), US Export Administration Regulations (“EAR”), or other applicable regulations (such data, materials or other items, the “Controlled Data”) unless prior written authorization has been received from HP, and (i) Customer, and any third party authorized by Customer, has provided HP not less than 10 days’ prior written notice that Controlled Data will be transferred to or through the Services and (ii) where necessary, Customer, and any third party authorized by Customer, have received prior written authorization from the U.S. Government and /or other national authorities to transfer the Controlled Data to HP. Customer is responsible, and will reimburse HP, for all costs, expenses or damages incurred by HP in connection with Customer, and any third party authorized by Customer, transfer of Controlled Data. If Customer has questions concerning these requirements or requires special solutions to comply with applicable export/import laws and regulations, Customer should contact Customer’s Hewlett Packard account manager.
15.5 Assignment/Subcontractors. Customer may not assign Customer rights and/or delegate Customer obligations under this Agreement without HP’s prior written consent. This Agreement will be binding on and inure to the benefit of Customer’s and HP’s respective permitted successors and permitted assigns. However, HP may use third party service providers or any affiliate or subsidiary to perform all or any part of the Services.
15.6 Force Majeure. Neither HP nor Customer will be in violation of this Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15.6 Governing Law, Lawsuits. This Agreement is governed by the laws of the State of New York, exclusive of any New York choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of this Agreement shall be in the state or federal courts in New York County, New York, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts. Each party agrees that it will not bring a claim under this Agreement more than two years after the time that the claim accrued.
15.7 Some Agreement Mechanics. This Customer Agreement may have been incorporated into Customer Order by reference to a page on the HP website. HP may reject any Order in HP’s sole discretion. HP’s provisioning of the Services shall be deemed HP’s acceptance of the Order.
If there is a conflict between the terms of the Customer Agreement, the AUP, or theOrder, the documents will govern in the following order: Customer Agreement, the Acceptable Use Policy, and the Order. If any part of this Agreement is found unenforceable by a court or other tribunal, the rest of this Agreement will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. The captions in this Customer Agreement are for convenience only and are not part of this Customer Agreement. The use of the word “including” in this Customer Agreement shall beread to mean “including without limitation.”
15.8 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
15.9 No Waiver. HP’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute a waiver, forfeiture, or modification of such rights. HP’s waiver of any right under this Agreement will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. HP’s waiver of any right under this Agreement must be in writing.
15.10 Severability. If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The remaining provisions of this Agreement will remain in full force and effect.