Read the terms below before using, installing or downloading a free and/or evaluation copy of the software you have requested (the "Software").

CLICKING “DOWNLOAD” OR OTHERWISE USING THE SOFTWARE FOR THE FIRST TIME INDICATES ACCEPTANCE OF THIS AGREEMENT BY YOU (REFERRED TO HEREIN AS “CUSTOMER”) AND YOUR AGREEMENT TO BE BOUND BY AND SUBJECT TO ITS TERMS. ACCEPTANCE OF THE TERMS EITHER BY USING THE SOFTWARE FOR THE FIRST TIME OR BY CLICKING “DOWNLOAD” CREATES A BINDING LEGAL AGREEMENT BETWEEN CUSTOMER AND HITACHI SOLUTIONS AMERICA, LTD. (“HSAL”) THAT CUSTOMER WILL USE THE SOFTWARE ONLY IN A MANNER THAT IS CONSISTENT WITH THESE TERMS. CUSTOMER’S USE OF THE SOFTWARE IS ENTIRELY CONDITIONED ON AND SUBJECT TO CUSTOMER’S COMPLIANCE WITH THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, DO NOT CHECK THE BOX OR OPEN OR OTHERWISE INSTALL THE SOFTWARE; CUSTOMER’S RIGHT TO COMMENCE DOWNLOADING THE SOFTWARE SHALL TERMINATE AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER.

1. Grant of License. Hitachi Solutions America, Ltd.   (“HSAL”), a California corporation, having a place of business at 851 Traeger Ave., Suite 200, San Bruno, CA 94066 grants to Customer a limited, nonexclusive, royalty-free license, without right of sublicense or distribution, to use the Software in accordance with the terms of this Agreement for the time period specified on HSAL’s website (if any) (the “Use Period”) after first use. Customer hereby agrees to license the Software from  HSAL, on the terms and conditions set forth below. For Customers receiving the Software in a CD/DVD or other case, the date of first use shall be deemed to be the date HSAL tenders delivery of the Software to a carrier for shipment to Customer. If no other evidence exists, the date of the bill of lading or any receipt issued by the carrier shall be conclusive proof thereof. For Customers receiving the Software via download, the date of first use shall be deemed to be the date Customer downloads the Software. During the Use Period, Customer may use the Software for the sole purpose of evaluating and testing the Software for potential licensing. Except as licensed hereunder, all right, title and interest in the Software and related materials shall remain vested in HSAL and its licensors.

2. Open-Source Software. If the Software contains any open-source software (e.g., jQuery and/or MIT License) (the Open-Source Software”). The Open-Source Software is subject to the respective terms of use in the applicable licenses for such Open-Source Software. For license terms and other conditions of the Open-Source Software, please refer to the applicable license included with the Software. The source code for the Open-Source Software is available to Customer. Please send an inquiry to us.info@hitachi-solutions.com   for information on obtaining the source code for the Open-Source Software. If the license for any Open-Source Software has restrictions on reverse engineering, Section 10 of this Agreement shall not apply to the extent covered by the license for the Open-Source Software. THE OPEN-SOURCE SOFTWARE IS THE INTELLECTUAL PROPERTY OF THE RESPECTIVE THIRD PARTY WHICH OWNS THE COPYRIGHT AND OTHER RIGHTS THEREIN, AND IS PROVIDED IN ITS “AS-IS” CONDITION. Moreover, the license is granted at no charge, and neither HSAL nor any third party that owns proprietary rights in the Open-Source Software shall be liable for any damage arising in connection with the Open-Source Software and the Customer’s use of, or inability to use, the Open-Source Software to which the license applies.

3. Risk of Loss. At any time after Customer’s first use of the Software, risk of loss or damage to the Software shall be borne by Customer. If applicable, Customer shall also bear the risk of loss or damage to the Software during shipment of the Software from Customer to HSAL. Customer shall be responsible for the proper use, care, insurance and security of the Software during any such period.

4. Termination; Destruction of Software. This Agreement shall become effective on the date of Customer’s first use and remain in effect until the end of the Use Period (if any). HSAL may terminate Customer’s right to use the Software on notice to Customer on HSAL’s website or by other means. In addition to the foregoing, if Customer fails to comply with any term or condition set forth in this Agreement, then Customer’s rights to use the Software and other rights granted herein shall terminate immediately.

5. NO WARRANTY. THE SOFTWARE IS PROVIDED AS IS, WHERE IS, WITH NO WARRANTY. CUSTOMER ASSUMES ALL RISKS DIRECTLY AND INDIRECTLY RELATED TO USE AND PERFORMANCE OF THE SOFTWARE AND SERVICES. HSAL DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, OR BE ERROR FREE OR THAT HSAL WILL CORRECT ALL ERRORS. CUSTOMER AGREES THAT HSAL SHALL NOT BE LIABLE TO CUSTOMER FOR THE USE OR MISUSE OF THE SOFTWARE THAT RESULTS FROM ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICE. CUSTOMER ASSUMES ALL RISKS DIRECTLY AND INDIRECTLY RELATED TO THE USE AND PERFORMANCE OF THE SOFTWARE. TO THE EXTENT PERMITTED BY LAW, HSAL MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Any other service and/or support by HSAL shall be subject to availability and may be subject to additional fees as quoted by HSAL.

6. LIMITATION OF LIABILITY. HSAL is not liable for any problems caused by equipment or media, or for any claims made by third parties. HSAL is not liable for any problem that might occur with the Software due to any accident caused by a third party’s actions, or due to Customer’s intentional or negligent misconduct, misuse, or any use under abnormal conditions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HSAL IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING PUNITIVE DAMAGES, DAMAGES CAUSED BY ILLEGAL ACTS, LOST PROFITS OR DATA, DAMAGES TO SERVICES, OR ANY OTHER MONETARY DAMAGES FROM PRODUCT LIABILITY OR ANY OTHER THEORY, RESULTING FROM THE ABILITY OR INABILITY TO USE THE SOFTWARE, EVEN IF HSAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties, so the limitations in Sections 5 and 6 may not apply to Customer.

7. Indemnity. Customer shall indemnify, defend and hold HSAL and its officers, directors, and employees harmless from and against any and all claims, actions, damages, demands, liabilities, costs and expenses, including without limitation reasonable attorneys’ fees and expenses, resulting from the use of the Software by Customer or any other party acting, directly or indirectly, from or through Customer or resulting from any breach, default or other violation of this Agreement by Customer.

8. Confidentiality. The Software and related information are “Confidential Information” of HSAL. Customer shall not disclose any Confidential Information provided by HSAL or retrieved from the Software and related information to any third party without the prior written consent of HSAL. Employees of Customer are not third parties insofar as their use of the Software complies with the terms of this Agreement and is carried out for Customer at Customer’s premises and insofar as they have been bound to confidentiality in their employment agreement.

9. No Assignments, Loans, Transfers, Third Party Use, or Liens. Customer shall not assign any of its rights or obligations under this Agreement without the prior written consent of HSAL, which consent may be withheld by HSAL acting in its sole discretion. Customer shall not loan, transfer, sell or encumber the Software, shall not permit any third parties to use or evaluate the Software and shall not permit any liens to be placed on the Software.

10. No Modification, Disassembly, Reverse Engineering of Software. Customer shall not, shall not attempt to, and shall not permit any third party (whether through Customer’s negligent or intentional acts or omissions), to modify, adapt, disassemble, reverse engineer, decompile or otherwise attempt to discover the underlying proprietary design of the Software. Customer shall take all necessary precautions to protect HSAL’s copyright or licensed rights in the Software.

11. Compliance with Laws; Export Control. Customer shall at all times comply with applicable laws in its use of the Software. Customer shall not commit any act or request HSAL to commit any act which would violate either the letter or spirit of the export control laws or regulations of the United States, or other export control laws, rules or regulations, as applicable, and Customer shall not fail to take any action reasonably within its capacity to assure compliance with such laws, rules or regulations. Customer shall not, directly or indirectly, export, re-export or transship the Software (including any software) and/or technical information related thereto in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws and regulations promulgated and administered by the governments of any countries claiming jurisdiction over the parties or the transaction(s) contemplated herein. Customer shall not use the Software (including any software) for the purpose of disturbing international peace and security, including (a) the design, development, production, stockpile or use of weapons of mass destruction such as nuclear, chemical or biological weapons or missiles to deliver such weapons, (b) any other military purposes or activities, or (c) any use supporting these weapons activities.

12. Governing Law. In addition to all other rights and remedies which HSAL may have, Customer acknowledges that HSAL shall be entitled to recover from Customer all costs and expenses (including attorney’s fees) incurred by HSAL in enforcing this Agreement. This Agreement shall be governed by California law, excluding its conflict of laws rules. Customer hereby agrees on behalf of itself and any person claiming by or through Customer that the sole jurisdiction and venue for any litigation or arbitration arising from or relating to this Agreement shall be an appropriate federal or state court or arbitration panel located in Santa Clara County, California USA.

13. Survival. The provisions of Sections 6, 7, 8, 11, 12, 13, and 14 shall survive termination or expiration of this Agreement.

14. Entire Agreement. This Agreement constitutes the entire contractual commitment by Customer and supersedes any prior or contemporaneous oral or written agreement regarding the subject matter described herein. This Agreement expressly supersedes any additional or different terms in any purchase order or other documentation issued by Customer. This Agreement may only be modified or amended if approved by both Customer and HSAL. This Agreement shall be binding upon and inure to the benefit of Customer and its successors, assigns and legal representatives; provided, however, the rights and duties of Customer hereunder with respect to the Software may not be sold, assigned, sublicensed or otherwise transferred by it, in whole or in part, without the prior written consent of HSAL.

15. Interaction with Government Officials. Neither party, nor any of their respective 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 one party from the other party 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, by the other party.

IMPORTANT - READ THIS SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CHECKING THE "I ACCEPT" BOX, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT CHECK THE BOX OR OTHERWISE BEGIN USING THE SERVICES.

1.    Agreement Definitions.  “You” and “your” refers to the individual or entity that has ordered software as a service from Hitachi Solutions America, Ltd. (“Hitachi Solutions”). Software as a service consists of services made available from time to time by Hitachi Solutions in connection with the Hitachi Solutions programs that you are subscribing to, and includes the right to use the Hitachi Solutions programs (collectively, the “Services”). The term “Hitachi Solutions programs” refers to the software products owned or distributed by Hitachi Solutions (if any) to which Hitachi Solutions grants you access as part of the Services, and any program updates provided as part of the Services. The term “Users” shall mean those individuals authorized by you or on your behalf to use the Services. The term “your Data” refers to the data, if any, provided by you that resides in your services environment. The term “Software” means software which you may be allowed to download in connection with some Services and which may update automatically.  Services provided under this Agreement shall be provided until terminated in accordance with this Agreement, which period shall be referred to herein as the “Term.”

2.    Rights Granted.  Upon your acceptance of this Agreement and for the duration of the Term, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services subject to the terms of this Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with this Agreement. You are expected to ensure that the Users safeguard their passwords to the Services, make sure that others do not have access to their passwords, and keep your account information current.  You and your Users must use the Services in compliance with Hitachi Solutions’ Terms of Use.  You will promptly notify Hitachi Solutions of any unauthorized use of or access to the Services.

You acknowledge that Hitachi Solutions has no delivery obligation and will not ship copies of the Hitachi Solutions programs to you as part of the Services. You agree that you do not acquire under this Agreement any license to use the Hitachi Solutions programs in excess of the scope and/or duration of the Services. Upon the end of this Agreement or the Services, your right to access or use the Hitachi Solutions programs and the Services shall terminate.

So long as you comply with this Agreement, Hitachi Solutions gives you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, Hitachi Solutions will make that license available to you and the provisions of that license may expressly override some of this Agreement.

3.    Ownership and Restrictions.  You retain all ownership and intellectual property rights in and to your Data. Hitachi Solutions or its licensors retain all ownership and intellectual property rights to the Services, the Software and Hitachi Solutions programs. Hitachi Solutions retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.  Hitachi Solutions will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process your Data. These measures are designed to protect the integrity of your Data and guard against the unauthorized or unlawful access to, use, and processing of your Data. You agree that Hitachi Solutions may transfer, store, and process your Data in locations other than your country.  You may not:
•    remove or modify any program markings or any notice of Hitachi Solutions’ or its licensors’ proprietary rights;
•    modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Hitachi Solutions;
•    disclose results of any services or program benchmark tests without Hitachi Solutions’ prior written consent; and
•    license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, the Software, Hitachi Solutions programs or materials available to any third party other than as expressly permitted under the terms of this Agreement.

The rights granted to you under this Agreement are also conditioned on the following:

•    the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized user shall no longer have any right to access or use the license);
•    except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
•    you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

4.    Restrictions on Use of the Services.  You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Hitachi Solutions under this Agreement, Hitachi Solutions reserves the right to remove or disable access to any material that violates the foregoing restrictions. Hitachi Solutions shall have no liability to you in the event that Hitachi Solutions takes such action. You agree to defend and indemnify Hitachi Solutions against any claim arising out of a violation of your obligations under this section.

5.    Your Data.  Hitachi Solutions and you will each comply with the Hitachi Solutions Services Privacy Policy, which is available at http://us.hitachi-solutions.com/legal/privacy-policy and incorporated herein by reference and which requires Hitachi to use commercially reasonable efforts to protect your Data. The Hitachi Solutions Services Privacy Policy is subject to change at Hitachi Solutions’ discretion; however, Hitachi Solutions policy changes will not result in a material reduction in the level of protection provided for your Data during the period for which fees for the Services have been paid. The privacy policy referenced herein specifies our respective responsibilities for maintaining the security of your Data in connection with the Services.  You agree to provide any notices and obtain any consents related to your use of the Services and Hitachi Solutions’ provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your Data.

6.    Third Party Technology.  Third party technology may be appropriate or necessary for use with some Hitachi Solutions programs. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by the license provider and not by Hitachi Solutions nor under this Agreement.  

7.    Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Hitachi Solutions may automatically suspend use of the Services. Hitachi Solutions will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.

8.    Evaluation Use of the Services.  You may order certain Services for evaluation purposes only subject to the terms and conditions of this Agreement. Services acquired for evaluation purposes are provided “as is” for 14 days after your acceptance of this Agreement.  You agree that your payment will be processed by Hitachi Solutions at the end of the evaluation period if you have not affirmatively notified Hitachi Solutions in writing that you do not want to pay for the Services.  If Hitachi Solutions receives such notice within such 14-day period, then you will continue to have access to the freemium version of the Services in accordance with the terms of this Agreement.

9.    Fees and Taxes.  Some Services covered by this Agreement are provided at no charge (“freemium”) and other Services require a fee to be paid before Services are used.  If fees are required, the terms of this Section 9 apply.  You agree to pay for all Services ordered as set forth in this Agreement and you authorize Hitachi Solutions to charge your credit card for all applicable fees. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable except as required by law. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.  YOU ACKNOWLEDGE THAT YOUR ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL PERIOD.  YOU AGREE THAT HITACHI SOLUTIONS MAY AUTOMATICALLY CHARGE YOUR ACCOUNT AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS YOU NOTIFY HITACHI SOLUTIONS IN WRITING THAT YOU WANT TO CANCEL OR DISABLE AUTO RENEWAL.  You are responsible for providing complete and accurate billing and contact information to Hitachi Solutions. Hitachi Solutions may suspend or terminate the Services if fees are past due.  You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Hitachi Solutions must pay based on the Services you ordered, except for taxes based on Hitachi Solutions’ income. You will reimburse Hitachi Solutions for reasonable expenses related to providing any on-site portion of the Services. Fees for Services are exclusive of taxes and expenses. Hitachi Solutions may change the fees in effect but will give you advance notice of these changes in accordance with Section 22(d) below.  

You agree that you have not relied on the future availability of any Services, programs or updates in entering into any payment obligations; however, the preceding does not relieve Hitachi Solutions of its obligation to deliver Services that you are entitled to use per the terms of this Agreement.

10.    Warranties, Disclaimers and Exclusive Remedies.  Hitachi Solutions warrants that the Services will perform in all material respects in accordance with their specifications. If the Services provided to you for any given month during the Term were not performed as warranted, you must provide written notice to Hitachi Solutions no later than five business days after the last day of that particular month.  IN ALL OTHER RESPECTS, THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER YOU NOR HITACHI SOLUTIONS AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY DATA.

YOU ACKNOWLEDGE THAT HITACHI SOLUTIONS DOES NOT AND CANNOT CONTROL ALL BREACHES OF THE SYSTEM SUPPORTING THE SERVICES.  IF ENCRYPTION IS BROKEN, HITACHI SOLUTIONS IS NOT LIABLE FOR LOSSES YOU SUFFER OR MIGHT SUFFER.  HITACHI SOLUTIONS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT HITACHI SOLUTIONS WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT HITACHI SOLUTIONS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET AND ENCRYPTION MECHANISMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HITACHI SOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

11.    Indemnification.  If a third party makes a claim against you that all or any part of the Services, Software or Hitachi Solutions programs (“Material”), and used by you infringes its intellectual property rights, Hitachi Solutions, at its sole cost and expense, will defend you against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Hitachi Solutions, if you do the following:

•    notify Hitachi Solutions promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law);
•    give Hitachi Solutions sole control of the defense and any settlement negotiations; and
•    give Hitachi Solutions the information, authority, and assistance Hitachi Solutions needs to defend against or settle the claim.

If Hitachi Solutions believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, Hitachi Solutions may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Hitachi Solutions may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees you may have paid to the other party for such Material. If such return materially affects Hitachi Solutions’ ability to meet its obligations under this Agreement, then Hitachi Solutions may, at its option and upon 30 days prior written notice, terminate this Agreement. Hitachi Solutions will not indemnify you if you alter the Material or use it outside the scope of use identified herein or if you use a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to you. Hitachi Solutions will not indemnify you to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Hitachi Solutions, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party Web page accessed via a hyperlink). Hitachi Solutions will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Hitachi Solutions. Hitachi Solutions will not indemnify you for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. Hitachi Solutions will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this Agreement. This section provides your exclusive remedy for any infringement claims or damages.
 
12.    Nondisclosure.  By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to the terms and pricing under this Agreement, your Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure.

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those affiliates, employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. Hitachi Solutions will protect the confidentiality of your Data residing in the Services environment in accordance with Hitachi Solutions’ security practices. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

13.    Limitation of Liability.  NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. HITACHI SOLUTIONS’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO HITACHI SOLUTIONS FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
 
14.    Termination or Suspension of Agreement.    You may cancel the Services at any time but you will not be issued a refund for prepaid amounts and shall pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses.  Hitachi Solutions shall have the right to terminate the Services and this Agreement at any time for any reason or no reason on 90 days’ prior notice to you.  If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate this Agreement. If Hitachi Solutions terminates this Agreement as specified in the preceding sentence, your right to use the Services will terminate and you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. If Hitachi Solutions ends the Services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use any Services.

In addition, Hitachi Solutions may, in its sole discretion, either (a) immediately suspend your password, account and access to or use of the Services or (b) revert your access to Services to the freemium version of the Services (i) if you fail to pay Hitachi Solutions as required under this Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections 2, 3, 4 and 20 of this Agreement. Hitachi Solutions may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Hitachi Solutions’ initial notice thereof. Any change in your access to, or suspension by Hitachi Solutions of, the Services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement.

At your request, and for a period of up to 60 days after the termination of this Agreement, Hitachi Solutions may permit you to access the Services solely to the extent necessary for you to retrieve a file of your Data then in the Services environment.
You agree and acknowledge that Hitachi Solutions has no obligation to retain your Data and that your Data may be irretrievably deleted after 60 days following the termination of this Agreement.

Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, payment, and others which by their nature are intended to survive.

15.    Disputes. Hitachi Solutions wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Section 14(d) above. If a dispute is not resolved within 30 days of notice, you or Hitachi Solutions may bring a formal proceeding.  You and Hitachi Solutions agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, California.  Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use without first engaging in the informal dispute notice process described above. Both you and Hitachi Solutions consent to venue and personal jurisdiction there.
 
16.    Services Tools.  Hitachi Solutions may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your service requests. The Tools will not in any way decrypt your Data.  The Tools will not collect, report or store any of your Data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the Tools (excluding production Data) may also be used to assist in managing Hitachi Solutions’ product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the Tools, and (b) you will not use or restore the Tools from any backup system at any time following termination of this Agreement.

If Hitachi Solutions provides you with access to or use of any Tools in connection with the Services, you shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate your administration and monitoring of your Services environment, subject to the terms of this Agreement. Any such Tools are provided by Hitachi Solutions on an “as is” basis and Hitachi Solutions does not provide technical support or offer any warranties for such Tools. Your right to use such Tools will terminate upon the earlier of Hitachi Solutions’ notice, the end of the Term, or the date that the license to use such Tools ends under the license terms specified for such Tools.

17.     Statistical Information.  Hitachi Solutions may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate your Data and/or identify your Confidential Information or include your company’s name.  Hitachi Solutions retains all intellectual property rights in such information.
 
18.    Third Party Web Sites, Content, Products and Services.  The Services may enable you to add links to Web sites and access to content, products and services of third parties, including Users, advertisers, affiliates and sponsors of such third parties. Hitachi Solutions is not responsible for any third party Web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.

19.    Customer Reference.  You agree (i) that Hitachi Solutions may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Hitachi Solutions for promotional purposes.

20.    Export.  Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data), and you agree to comply with all such export laws and regulations. You agree that no Data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.  

21.    Force Majeure.  Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 30 days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.

22.    Other
a.    Hitachi Solutions is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.  We each will be responsible for paying our own employees, including employment related taxes and insurance.

b.    You shall obtain at your sole expense any rights and consents from third parties necessary for Hitachi Solutions and its subcontractors to perform the Services under this Agreement.

c.    This Agreement is governed by the substantive and procedural laws of California and you and Hitachi Solutions agree to submit to the exclusive jurisdiction of, and venue in, the federal and state courts in San Francisco County, California in any dispute arising out of or relating to this Agreement.

d.    If you have a dispute with Hitachi Solutions or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Hitachi Solutions America, Ltd., 851 Traeger Ave. Suite 200, San Bruno CA 94066, Attention: Legal Department. Hitachi Solutions may give notice applicable to Hitachi Solutions’ software as a service customer base by means of a general notice when you log in to use the Services, and notices specific to you by electronic mail to your e-mail address on record in Hitachi Solutions’ account information or by written communication sent by first class mail or pre-paid post to your address on record in Hitachi Solutions’ account information.

e.    You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity. If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services.

f.    The Uniform Computer Information Transactions Act does not apply to this Agreement. You understand that Hitachi Solutions’ business partners, including any third party firms retained by you to provide computer consulting services, are independent of Hitachi Solutions and are not Hitachi Solutions’ agents. Hitachi Solutions is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Hitachi Solutions subcontractor on an engagement ordered under this Agreement.

g.    Hitachi Solutions may revise this Agreement from time to time and the most current version will always be posted on the Hitachi Solutions website. If a revision, in Hitachi Solutions' sole discretion, is material, Hitachi Solutions will notify you in accordance with Section 22(d) above. Other revisions may be posted to Hitachi Solutions' terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If you do not agree to the revised Agreement terms, you may terminate the Services within 30 days of receiving notice of the change.

h.    You agree that this Agreement is the complete agreement for the Services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.

i.    If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement.

j.    It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non-Hitachi Solutions document and no terms included in any such purchase order or other non-Hitachi Solutions document shall apply to the Services ordered.

k.    This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of you and of Hitachi Solutions.  A waiver of any default is not a waiver of any subsequent default.

23.  Interaction with Government Officials. Neither party, nor any of their respective 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 one party from the other party 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, by the other party.

IMPORTANT - READ THIS SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CHECKING THE "I ACCEPT" BOX, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT CHECK THE BOX OR OTHERWISE BEGIN USING THE SERVICES.

 

1. Agreement Definitions. “You” and “your” refers to the individual or entity that has ordered software as a service from Hitachi Solutions America, Ltd. (“Hitachi Solutions”). Software as a service consists of services made available from time to time by Hitachi Solutions in connection with the Hitachi Solutions programs that you are subscribing to, and includes the right to use the Hitachi Solutions programs (collectively, the “Services”). The term “your Data” refers to the data, if any, provided by you that resides in your services environment. The term “Software” means software which you may be allowed to download in connection with some Services and which may update automatically. Services provided under this Agreement shall be provided until terminated in accordance with this Agreement, which period shall be referred to herein as the “Term;” provided, however, you acknowledge and agree that your rights granted in Section 2 are time limited, and the Services may be disabled automatically or remotely by Hitachi Solutions at any time.

 

2. Rights Granted. Upon your acceptance of this Agreement and for the duration of the Term, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services subject to the terms of this Agreement for evaluation purposes only. You may use the Services on behalf of yourself or on behalf of an entity by which you are employed for this purpose and you are responsible for your compliance with this Agreement. If more than one individual requires access to the Services on behalf of the same entity, each individual is required to access the Services separately and to separately accept the terms and conditions of this Agreement before using the Services. You will safeguard your password to the Services, make sure that others do not have access to your passwords, and keep your account information current. You must use the Services in compliance with Hitachi Solutions’ Terms of Use. You will promptly notify Hitachi Solutions of any unauthorized use of or access to the Services.

 

So long as you comply with this Agreement, Hitachi Solutions gives you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services for evaluation purposes. You do not acquire under this Agreement any license to use the Software in excess of the scope and/or duration of the Services. You acknowledge that Hitachi Solutions has no delivery obligation and will not ship any Software to you as part of the Services. To the extent any component of the Software may be offered under an open source license, Hitachi Solutions will make that license available to you and the provisions of that license may expressly override some of this Agreement. Upon the end of this Agreement or the Services, your right to access or use the Hitachi Solutions programs and the Services shall terminate.

 

3. Ownership and Restrictions. You retain all ownership and intellectual property rights in and to your Data. Hitachi Solutions or its licensors retain all ownership and intellectual property rights to the Services and the Software. Hitachi Solutions retains all ownership and intellectual property rights to anything developed and delivered under this Agreement by you or Hitachi Solutions, including without limitation any templates, interfaces, ideas, concepts, techniques, derivative works and know-how created or developed directly or indirectly pursuant to your use of the Services (“Developed IP”). Hitachi Solutions shall have the right to use or not use Developed IP in its sole discretion. Hitachi Solutions grants you a non-exclusive, non-transferable, perpetual, royalty-free, worldwide right to use such Developed IP during the Term of this Agreement for your internal business purposes solely in connection with your evaluation of the Services. Hitachi Solutions will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process your Data. These measures are designed to protect the integrity of your Data and guard against the unauthorized or unlawful access to, use, and processing of your Data. You agree that Hitachi Solutions may transfer, store, and process your Data in locations other than your country. You may not:

 

• remove or modify any program markings or any notice of Hitachi Solutions’ or its licensors’ proprietary rights;
• modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Hitachi Solutions;
• disclose results of any services or program benchmark tests without Hitachi Solutions’ prior written consent; and • license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, the Software or materials available to any third party other than as expressly permitted under the terms of this Agreement.

 

The rights granted to you under this Agreement are also conditioned on the following:

 

• the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized user shall no longer have any right to access or use the Services); • except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
• you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

 

4. Restrictions on Use of the Services. You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Hitachi Solutions under this Agreement, Hitachi Solutions reserves the right to remove or disable access to any material that violates the foregoing restrictions. Hitachi Solutions shall have no liability to you in the event that Hitachi Solutions takes such action. You agree to defend and indemnify Hitachi Solutions against any claim arising out of a violation of your obligations under this section.

 

5. Your Data. Hitachi Solutions and you will each comply with the Hitachi Solutions Services Privacy Policy, which is available at http://us.hitachi-solutions.com/legal/privacy-policy and incorporated herein by reference and which requires Hitachi to use commercially reasonable efforts to protect your Data. The Hitachi Solutions Services Privacy Policy is subject to change at Hitachi Solutions’ discretion; however, any such changes will not result in a material reduction in the level of protection provided for your Data during the Term. The privacy policy referenced herein specifies Hitachi Solutions’ and your respective responsibilities for maintaining the security of your Data in connection with the Services. You agree to provide any notices and obtain any consents related to your use of the Services and Hitachi Solutions’ provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your Data.

 

6. Third Party Technology. Third party technology may be appropriate or necessary for use with some Software. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by the license provider and not by Hitachi Solutions nor under this Agreement.

 

7. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Hitachi Solutions may automatically suspend use of the Services. Hitachi Solutions will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.

 

8. Taxes. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Hitachi Solutions must pay based on the Services you ordered, except for taxes based on Hitachi Solutions’ income. You will reimburse Hitachi Solutions for reasonable expenses related to providing any on-site portion of the Services. You agree that you have not relied on the future availability of any Services, Software or updates; however, the preceding does not relieve Hitachi Solutions of its obligation to deliver Services that you are entitled to use per the terms of this Agreement.

 

9. Warranty Disclaimer and Exclusive Remedies. THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER YOU NOR HITACHI SOLUTIONS AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS, SATISFACTORY QUALITY OR NON-INFRINGEMENT. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY DATA. TO THE EXTENT NOT PROHIBITED BY LAW, THESE REMEDIES ARE EXCLUSIVE.

 

YOU ACKNOWLEDGE THAT HITACHI SOLUTIONS DOES NOT AND CANNOT CONTROL ALL BREACHES OF THE SYSTEM SUPPORTING THE SERVICES. IF ENCRYPTION IS BROKEN, HITACHI SOLUTIONS IS NOT LIABLE FOR LOSSES YOU SUFFER OR MIGHT SUFFER. HITACHI SOLUTIONS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT HITACHI SOLUTIONS WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT HITACHI SOLUTIONS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET AND ENCRYPTION MECHANISMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. HITACHI SOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

10. Indemnification. You will indemnify, defend, and hold harmless Hitachi Solutions and its affiliates and its and their officers, directors, shareholders, employees, agents, licensors, distributors and suppliers from and against any and all claims, demands, actions, losses, liabilities, settlements, expenses (including without limitation attorneys’ fees and other costs of litigation), and causes of action arising out of or relating to your use or misuse of the Services or your breach or alleged breach of this Agreement.

 

11. Nondisclosure. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to the terms of this Agreement, your Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure.

 

A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.

 

We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those affiliates, employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. Hitachi Solutions will protect the confidentiality of your Data residing in the Services environment in accordance with Hitachi Solutions’ security practices. Nothing shall prevent either party from disclosing Confidential Information in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

 

12. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. HITACHI SOLUTIONS’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND YOUR USE OF THE SERVICES, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO HITACHI SOLUTIONS FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

 

13. Termination or Suspension of Agreement. You may cancel the Services at any time but you will not be issued a refund for prepaid amounts and shall pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Hitachi Solutions shall have the right to terminate the Services and this Agreement at any time for any reason or no reason on 30 days’ prior notice to you. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate this Agreement. If Hitachi Solutions terminates this Agreement as specified in the preceding sentence, your right to use the Services will terminate and you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use any Services.

 

In addition, Hitachi Solutions may, in its sole discretion, immediately suspend your password, account and access to or use of the Services if you violate any provision within sections 2, 3, 4 and 18 of this Agreement. Hitachi Solutions may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Hitachi Solutions’ initial notice thereof. Any change in your access to, or suspension by Hitachi Solutions of, the Services under this paragraph shall not excuse you from your obligation to make payment(s) (if any) under this Agreement.

 

At your request, and for a period of up to 60 days after the termination of this Agreement, Hitachi Solutions may permit you to access the Services solely to the extent necessary for you to retrieve a file of your Data then in the Services environment. You agree and acknowledge that Hitachi Solutions has no obligation to retain your Data and that your Data may be irretrievably deleted after 60 days following the termination of this Agreement.

 

Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability and others which by their nature are intended to survive.

 

14. Services Tools. Hitachi Solutions may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your service requests. The Tools will not in any way decrypt your Data. The Tools will not collect, report or store any of your Data residing in the Services production environment, except as necessary to troubleshoot service requests or other problems with the Services. Data collected by the Tools (excluding production Data) may also be used to assist in managing Hitachi Solutions’ product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the Tools, and (b) you will not use or restore the Tools from any backup system at any time following termination of this Agreement.

 

If Hitachi Solutions provides you with access to or use of any Tools in connection with the Services, you shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate your administration and monitoring of your Services environment, subject to the terms of this Agreement. Any such Tools are provided by Hitachi Solutions on an “as is” basis and Hitachi Solutions does not provide technical support or offer any warranties for such Tools. Your right to use such Tools will terminate upon the earlier of Hitachi Solutions’ notice, the end of the Term, or the date that the license to use such Tools ends under the license terms specified for such Tools.

 

15. Statistical Information. Hitachi Solutions may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate your Data and/or identify your Confidential Information or include your company’s name. Hitachi Solutions retains all intellectual property rights in such information.

 

16. Third Party Web Sites, Content, Products and Services. The Services may enable you to add links to Web sites and access to content, products and services of third parties, including advertisers, affiliates and sponsors of such third parties. Hitachi Solutions is not responsible for any third party Web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.

 

17. Customer Reference. You agree (i) that Hitachi Solutions may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Hitachi Solutions for promotional purposes.

 

18. Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data), and you agree to comply with all such export laws and regulations. You agree that no Data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

 

19. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event affecting our respective performance obligations hereunder. If such event continues for more than 30 days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services, if applicable.

 

20. Interaction with Government Officials. Neither party, nor any of their respective 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 one party from the other party 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, by the other party.

 

21. Other

a. Hitachi Solutions is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.

 

b. You shall obtain at your sole expense any rights and consents from third parties necessary for Hitachi Solutions and its subcontractors to perform the Services under this Agreement.

 

c. This Agreement is governed by the substantive and procedural laws of California and you and Hitachi Solutions agree to submit to the exclusive jurisdiction of, and venue in, the federal and state courts in San Francisco County, California in any dispute arising out of or relating to this Agreement.

 

d. Any written notices to be given hereunder by either party will be deemed effective upon personal delivery or upon mailing the notice to you at the e-mail address provided in connection with your acceptance of this Agreement or to Hitachi Solutions at Hitachi Solutions America, Ltd., 851 Traeger Ave. Suite 200, San Bruno CA 94066, Attention: Legal Department. Hitachi Solutions may give notice applicable to Hitachi Solutions’ software as a service customer base by means of a general notice when you log in to use the Services, and notices specific to you by electronic mail to your e-mail address on record in Hitachi Solutions’ account information or by written communication sent by first class mail or pre-paid post to your address on record in Hitachi Solutions’ account information.

 

e. Hitachi Solutions wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in subsection (d) above. If a dispute is not resolved within 30 days of notice, you or Hitachi Solutions may bring a formal proceeding. You and Hitachi Solutions agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, California. Either party may bring a lawsuit in the federal or state courts of San Francisco County, California solely for injunctive relief to stop unauthorized use without first engaging in the informal dispute notice process described above. Both you and Hitachi Solutions consent to venue and personal jurisdiction there.

 

f. You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity. If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services.

 

g. The Uniform Computer Information Transactions Act does not apply to this Agreement. You understand that Hitachi Solutions’ business partners, including any third party firms retained by you to provide computer consulting services, are independent of Hitachi Solutions and are not Hitachi Solutions’ agents. Hitachi Solutions is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Hitachi Solutions subcontractor on an engagement ordered under this Agreement.

 

h. Hitachi Solutions may revise this Agreement from time to time and the most current version will always be posted on the Hitachi Solutions website. If a revision, in Hitachi Solutions' sole discretion, is material, Hitachi Solutions will notify you in accordance with subsection (d) above. Other revisions may be posted to Hitachi Solutions' terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If you do not agree to the revised Agreement terms, you may terminate the Services within 30 days of receiving notice of the change.

 

i. You agree that this Agreement is the complete agreement for the Services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. Notwithstanding the foregoing, to the extent you or your company have entered into a separate written agreement in connection with the Services for either evaluation or production purposes, then the terms and conditions of the separate written agreement shall control over this Agreement.

 

j. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement.

 

k. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non-Hitachi Solutions document and no terms included in any such purchase order or other non-Hitachi Solutions document shall apply to the Services ordered.

 

l. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of you and of Hitachi Solutions. A waiver of any default is not a waiver of any subsequent default.