HPE Helion Stackato Product Evaluation Agreement¶

This HPE Product Evaluation Agreement (the "Agreement") governs the use of the accompanying HPE Helion Stackato Software ("Software"), unless it is subject to a separate agreement between you ("You" or "Customer") and Hewlett Packard Enterprise Company and its affiliates and subsidiaries ("HPE"). By downloading, copying, or using the Software you agree to this Agreement.

1. Products. HPE shall provide the object code version of generally available or pre-release Software products together with available related standard documentation of the Software, which includes applicable use restrictions and authorizations (“Documentation”). HPE is providing the Products for the sole purpose of enabling Customer to internally test and evaluate the Products in a test environment, and not for use in a production or commercial environment (“Use”). “Products” include Software, Hardware, and Documentation. Any pre-release Products that are not generally available shall be considered confidential information and shall not be disclosed to third parties.
2. License, Ownership and Feedback.
   1. HPE hereby grants Customer a non-exclusive license to Use the Products, royalty-free, at the location and by the number of authorized users as specified in chart below. Customer may not transfer or sublicense this license to any third party. Customer may make one backup or archival copy of the Software portion of the Products. To the extent the Products are subject to any third party license terms or the terms of an open source license for open source code, then those third party license terms or open source licenses shall govern with respect to that subject technology. All worldwide right, title, and interest to the Products (including any corrections, bug fixes, enhancements, updates, or other modifications thereto, whether or not made by HPE), and any third party products included in such (“Third Party Product”), and all intellectual property rights in and to them, are and will remain the exclusive property of HPE and its Third Party Product licensors.
   2. Customer agrees and acknowledges that should it provide HPE with any feedback or suggestions regarding the Products, HPE shall own such feedback and suggestions, and be entitled to use them for any purpose.
3. Restrictions on Use. Except as expressly set forth herein, no intellectual property license, and no other license of any kind is granted. Customer shall not use the Products to produce, market, or support its own products. Furthermore, Customer shall not: (a) reproduce, modify, translate, or create any derivative work of all or any portion of the Products; (b) sell, rent, lease, loan, provide, distribute, or otherwise transfer all or any portion of the Products; (c) reverse-engineer, reverse-assemble, or otherwise attempt to gain access to the source code of all or any portion of the Software, (d) use the Software in any manner other than that described in the Documentation and this Agreement; (e) display or disclose the Products to any person other than those employees of Customer who need to know such information; (f) use the Products for third-party training, commercial time-sharing, or service bureau use; (g) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in the Products; (h) use or access any Third Party Product that is included in the Products, or provided to Customer by HPE, separately from the Products; or (i) cause, authorize, or permit any third party to do any of the foregoing.
4. Delivery. The Software may be provided in object code form by internet download, or HPE may deliver the Products in-person or shipped by a carrier.
5. Hardware. If applicable, Hardware, which may include embedded Software, is loaned to Customer for the Term (as defined below) of this Agreement. If requested by HPE, Customer will affix any label or marking supplied by HPE evidencing HPE’s ownership of the Hardware. Customer will maintain all Hardware in good operating order and condition at Customer’s cost or expense unless otherwise agreed to in writing by HPE.
6. Term. The term of this Agreement (the "Term") is specified in the chart at the bottom of this Agreement. The Term is for the specified number of days for the specific Products licensed or until purchase of and payment for the Hardware or an appropriate license to use the Software, as applicable, whichever is earlier. Unless Customer purchases and pays for an appropriate license to use the Products, upon the expiration of the Term or any earlier termination of this Agreement: (a) all licenses granted hereunder shall cease; (b) Customer shall promptly remove or erase all intangible copies of the Products; and (c) Customer shall promptly return all tangible materials, including any Hardware, to HPE. Customer shall bear all risk of loss with respect to the Hardware from receipt until such Hardware is returned to HPE.
7. Precedence. This Agreement governs the use of the Products and takes precedence over any HPE license terms included with the Products.
8. Third Party Content. Certain Products may include Third Party Products. If the Third Party Product includes Third Party Product click-wrap or shrink-wrap licensing terms, then those terms shall apply to the Third Party Products. Products may contain software and associated documentation that are confidential to, and trade secrets of, such parties. Customer will not take any action other than to use it as authorized under the Agreement and will not disclose it to third parties.
9. Support. No support is provided. Customer should contact its local HPE reseller or HPE sales representative regarding installation or technical questions. Customer assumes full responsibility for the effective operation and for correcting any errors within and created by Products provided under this Agreement.
10. Disclaimer of Warranties. COMPANY ACCEPTS THE PRODUCTS "AS IS", WITH ANY ERRORS OR DEFECTS. HPE MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, HPE DISCLAIMS ALL OTHER WARRANTIES. HPE DOES NOT WARRANT THAT THE OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PRODUCTS WILL OPERATE IN HARDWARE AND SOFTWARE COMBINATIONS OTHER THAN AS AUTHORIZED BY HPE IN SUPPORTING MATERIAL.
11. Limitation of Liability. HPE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR LOST REVENUES OR PROFITS, DOWNTIME COSTS, OR LOSS OR DAMAGE TO DATA.
12. Assignment. Customer shall not assign or otherwise transfer any rights or obligations under this Agreement. Any attempted assignment or transfer shall be void.
13. Termination. In the event that Customer breaches this Agreement, HPE may terminate this Agreement immediately upon written notice to Customer. Further, either party may terminate this Agreement without cause on five days prior written notice. The rights and responsibilities of the parties pursuant to sections 3, 7, 8, 10 and 11 above shall survive the expiration of the Term or earlier termination of this Agreement.
14. Disclosure of Testing Results. Customer shall not disclose to any third party the results of (i) any performance benchmarks Customer runs on Products or (ii) specific detailed comparisons Customer makes between Products and any third party product, without the prior written consent of HPE. All such information shall be the confidential information of HPE.
15. Export Requirements. If Customer exports, imports or otherwise transfers Products provided under this Agreement, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. HPE may suspend or terminate its performance under this Agreement to the extent required by laws applicable to either party.
16. U.S. Governmental Rights. If Software or technical data is licensed or provided to Customer for use in the performance of a US Government prime contract or subcontract, Customer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under HPE’s standard commercial license.
17. Entire Agreement and Governing Law. This Agreement represents the entire understanding of the parties with respect to the subject matter herein and supersedes any previous and contemporaneous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by authorized representatives of both parties. The Agreement will be governed by the laws of the country of HPE entity signing this Agreement and the courts of that locale will have jurisdiction; however, HPE may, bring suit for payment in the country where the Customer is located. Customer and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Claims arising or raised in the United States will be governed by the laws of the state of California, excluding rules as to choice and conflict of law.
18. Product Specific Term and Use Restrictions. The chart below shows the Product name and any use restriction.