TERMS AND CONDITIONS FOR THE USE OF THE CLOUD SERVICES MANAGED BY HITACHI DATA SYSTEMS

These Terms and Conditions govern your access to, and use of, the Cloud Services which are further described on the Cloud Services Website and which Cloud Services are managed by Hitachi Data Systems Corporation or its affiliate company within the jurisdiction where you are located  (“HDS,” “we,” “us,” or “our”). This Agreement is between HDS and you or the entity that you represent (“you“). You warrant and represent that you are lawfully able to enter into this Agreement and if you enter into it on behalf of an entity, such as the company you work for, that you have legal authority to bind that entity.

Whilst HDS provides the Cloud Services, we sell the Cloud Services either directly or through ACW Services (HK) Limited (“Distributor”).  Where we sell through Distributor, Distributor may have sold the Cloud Services to you either directly, or through its own network of resellers (each a “Reseller”).

Furthermore, the policies that we notify to you are applicable to the Cloud Services will form part of this Agreement, including, without limitation, the following Acceptable Use Policy:

  1. DEFINITIONS:

'Agreement'

The Agreement formed by your acceptance of these terms and conditions, which governs the Cloud Services;

'Cloud Services'

The cloud services governed by this Agreement;

'Cloud Services Website'

The Website created by HDS or Distributor that describes the Cloud Services; 

'Order'

The Purchase Order or any contract you enter into with either HDS, Distributor or a Reseller for the Supply of the Cloud Services.

'Cloud Services Portal'

The service portal where you can perform subscription, provisioning and management of the Cloud Services;

'Subscription'

The subscription by you for Cloud Services via a Portal and the terms “Subscribe” or “Subscribed” shall be construed accordingly. 

 

2. Commencement of Agreement and duration of Orders
a. This Agreement will commence when you register on the Cloud Services Website and you click the “I Accept” button  or, if earlier, when you start to use the Cloud Services.
b. For each Subscription for Cloud Services that you make and that we accept under a Cloud Services Portal     , we will make the relevant Cloud Services available to you, subject to the terms of this Agreement.
3. Purchase and Use of the Cloud Services:
a. You may access and use the Cloud Services as set out in the relevant Order in accordance with this Agreement, provided that you adhere to all laws, regulations, policies and contractual terms applicable to the Cloud Services.
b. Upon placing an Order with HDS or Distributor or a Reseller, a Customer Account associated with one valid e-mail address will be created for you to access the Cloud Services Website and the Cloud Services Portal(s) related to the Cloud Services you have Subscribed.   You must keep all information relating to your Customer Account up to date at all times. You are responsible for all activities that occur under your Customer Account, regardless of whether the activities are undertaken by you, your employees or a third party, and you must keep all log-in keys and authorization credentials confidential and secure at all times. Except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
c. You may access the Cloud Services via the relevant Cloud Services Website(s).
d. You are able to Subscribe and provision Cloud Services on the relevant Cloud Services Website(s).  By Subscribing Cloud Services online, you authorize HDS or Distributor or the relevant Reseller to charge you according to the price stipulated in your 'Order', until you terminate your Subscription via the relevant Cloud Services Website.
e. You may only access and use the Cloud Services for your internal business purposes, which purposes may include access and use of the Cloud Services to provide services to your internal business and external end user customers (“End Users”). You are not entitled to resell the Cloud Services to any person.
f. We may discontinue or change any of the Cloud Services in whole or in part or change or remove features or functionality of a Cloud Service from time to time. We will notify you of any material change to, or discontinuation of, the Cloud Services.
4. Your Responsibilities
a. You are solely responsible for the development, operation, maintenance, and use of all the content that you and/or your End Users access or use through the Cloud Services, with such content including software (including machine images), data, text, audio, video, images or other content (“Content”). You must ensure that such Content is fully compliant with all applicable policies, contractual terms and laws.
b. If you use any Cloud Service to provide services to your End Users you are responsible for such End Users’ use of Content and the Cloud Services. You will ensure that your contracts with End Users are consistent with this Agreement that all End Users comply with such contracts. If you become aware of any violation of your obligations under this Agreement due to an End User, you will immediately terminate such End User’s access to the Content and the Cloud Services.
c. You are responsible for properly configuring and using the Cloud Services to suit your operations and requirements, as well as the Content requirements of you and/or your End Users.
d. YOU MUST TAKE  ALL NECESSARY STEPS TO MAINTAIN APPROPRIATE SECURITY, PROTECTION AND BACK-UP OF THE CONTENT, WHICH MAY INCLUDE THE USE OF ENCRYPTION TECHNOLOGY TO PROTECT IT FROM UNAUTHORIZED ACCESS AND ROUTINE BACK-UP AND ARCHIVING PROCESSES.
e. You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to your End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
f. You will co-operate with our investigation of outages, security problems and any breach of this Agreement and will immediately notify us of any known or suspected security breaches.
5. Proprietary Rights
a. As between you and us: (i) we and our affiliates and licensors own all right, title and interest, including all intellectual property rights, in the Cloud Services and all infrastructure and technology used in the supply of the Cloud Services and you obtain no rights in such items, other than as expressly provided for in this Agreement, and (ii) you and your licensors own all right, title and interest, including all intellectual property rights in the Content. However, you consent to our use of such Content to provide the Cloud Services to you or any End Users or to comply with any request of a governmental regulatory body (including subpoenas and court orders).
b. You have no right to use any trade mark or brand name of ours or of our affiliates, pursuant to this Agreement.
c. You represent and warrant to us that; (i) you or your licensors own  all right, title, and interest in and to the Content; (b) you have all rights in such Content necessary to grant the rights contemplated by this Agreement; and (c) none of the  Content, your and/or End Users’ use of the Content or the Cloud Services will violate this Agreement or the policies relating to the Cloud Services.
6. Suspension and Termination
a. We may suspend the supply of any Cloud Service to you, in part or whole, without liability if: (i) we reasonably believe that the Cloud Service is being used (or have been or will be used) by you or your End User in violation of the Agreement or we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (ii) the suspension is necessary in order for us to perform maintenance, whether scheduled or unscheduled, routine or emergency; (iii) you fail to co-operate with our reasonable investigation of any suspected violation of this Agreement; (iv) we reasonably believe that your account has been accessed or used by another person without authorization; (v) we reasonably believe that suspension of the Cloud Service is necessary to protect our network or our other customers; (vi) your are in default in making payments under an Order; or (vi) the suspension is required by law. We will endeavor to give you reasonable advance notice of a suspension.
b. We may terminate the supply of any Cloud Service on written notice to you if you fail to comply with any provision of the Agreement and, where it is capable of remedy, you do not remedy the failure within thirty (30) days of our notice to you describing the failure.
7. Indemnity and Liability
a. You will defend, indemnify, and hold harmless us and our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to the following (“Claim”): (a) your or any End Users’ use of the Cloud Services (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) your or your End Users’ Content or the combination of such Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by such Content or by the use, development, design, production, advertising or marketing of such Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable legal  fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
b. You will be responsible to defend or settle the Claim, but must not settle the Claim without our prior written consent. We may also assume control of the defence and settlement of the Claim at any time.
c. SUJBECT TO THIS AGREEMENT, THE CLOUD SERVICES ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE CLOUD SERVICES, INCLUDING ANY WARRANTY THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
d. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Cloud Services (except as expressly provided for in this Agreement), or results from our negligence or wilful misconduct. Neither of us (nor any of our employees, agents, affiliates or licensors) is liable to the other for any indirect, special, punitive, incidental or consequential loss or damage of any kind, or for any loss of profits or revenue or loss of, or damage, to data, even if the party responsible for the loss or damage has been advised of the possibility of such loss or damage.
e. Notwithstanding anything in the Agreement to the contrary, except for liability based on our wilful misconduct or fraudulent misrepresentation and liability for death or personal injury arising from our negligence, our maximum aggregate monetary liability to you (and that of our employees, agents, affiliates and licensors) in connection with this Agreement, the Cloud Services under any basis of law, whether for breach of contract, negligence or otherwise, will not exceed the lesser of: (a) the Fees that you have paid for the Cloud Services in the 12 month period prior to the occurrence of the event giving rise to the claim; and (b)US $100,000.
8. General
a. If any of our information that we notify you or otherwise consider on reasonable grounds to be confidential information comes into your possession or control, you will not disclose it during this Agreement or for the period of three (3) years following the termination or expiry of this Agreement, unless you first get our written consent. You must take all reasonable measures to avoid disclosure or unauthorized use of such confidential information and, at a minimum, take the same measures that you take to protect similar confidential information of your own. You will not make any press statement or other public communication with respect to this Agreement or the Cloud Services, nor misrepresent or embellish the relationship between us and you, nor imply any kind of relationship exists other than as expressly provided for in this Agreement. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
b. You acknowledge that, in various countries, the laws and regulations governing the export of computer products and technology may prohibit the use, sale or re-export of such products or technology, if you know (or have reason to know) that such products and technology are intended for use in connection with the design, development, production, stock piling or use of nuclear, chemical or biological weapons or missiles and, in some countries (e.g. China), for certain conventional military end-uses. If you sell, or transfer to another person or entity, the title in, or any right to use any part of the Cloud Services or any other materials supplied by HDS to you, you will ensure that all applicable export restrictions of the nature described in this section, are observed.
c. You agree and acknowledge that we may modify this Agreement and any policies relating to the Cloud Services at any time by posting a revised version on the Cloud Services Website or otherwise notifying you in writing. The modified terms will take effect upon the date of posting or written notification. By continuing to use the Cloud Services, you will be deemed to have accepted the modified terms and will be bound by them. You are responsible to check the Cloud Services Website for any modifications.
d. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any act or omission by you, your End Users or any person acting on your or their behalf, or from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In such circumstances, we may adjust any timetable or schedule for performance of our obligations as necessary.
e. Notices that we may provide you under this Agreement will be either posted on the Cloud Services Website or sent by email to the email address associated with your account. Notices we provide by posting on the Cloud Services Website will be effective upon posting and notices we provide by email will be effective when we send the email. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. Any notices that you send under this Agreement to us must be in writing to the relevant person and address set out in the country-specific terms applicable to where you are located. If there is no such express term applicable to you, the default recipient for notices will be as follows: Chief Legal Officer  and General Counsel, Hitachi Data Systems Corporation, 750 Central Expressway, MS:3446
Santa Clara, CA 95050-2627 Fax: 1408 496 6315  . This Agreement and all notices and other communications under this Agreement must be in English. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
f. You must not assign or novate this Agreement, nor delegate or sub-license any of your rights under this Agreement, without our prior written consent, and any attempt to do so will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
g. Our failure to enforce any part of this Agreement will not be a present or future waiver of that part nor limit our right to enforce it in the future. All waivers must be in writing.
h. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
i. This Agreement will be governed by the laws of the relevant jurisdiction stated in the country-specific terms applicable to where you are located and you agree that disputes will be heard in the courts of such jurisdiction; however, we may seek to enforce any judgment anywhere in the world where you may have assets. You will not bring a claim under the Agreement more than twelve (12) months after the event giving rise to the claim occurred.
j. This Agreement, along with the Order, the country-specific terms and the policies relating to the Cloud Services comprises the complete and exclusive agreement between you and us regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
k. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: applicable country-specific terms, this Agreement, and the policies relating to the Cloud Services.
l. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.

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These terms apply to the agreement between you and us for the supply of Cloud Connect Services (“Agreement”). Defined terms in these terms will have the same meaning as in the Agreement, unless expressly stated otherwise.

If you are located in Hong Kong or have completed an Order for the supply of Cloud Services that will be provided in whole or in part from datacenters or facilities located in Hong Kong (“Hong Kong Cloud Services”), then the following terms shall also form part of the Agreement.

1.    Hong Kong Entity

The Hong Kong Cloud Services will be supplied by Hitachi Data Systems (Hong Kong) Limited. References to (“HDS,” “we,” “us,” or “our”) in this Agreement will mean this entity, with respect to such Cloud Services.

 2.    Governing Law and Choice of Venue

The Agreement, as it relates to the Hong Kong Cloud Services is subject to the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). Your obligations under the Agreement to comply with applicable law therefore includes compliance with the laws of Hong Kong. You agree to submit all disputes under the Agreement to the jurisdiction of the courts in Hong Kong.

3.     Data protection

You agree that you will comply with the Personal Data (Privacy) Ordinance (Cap. 486 of laws of Hong Kong) (“PDPO”) with respect to all the personal data (as defined by the PDPO) (“Personal Data”) collected, accessed, processed and used by you and/or your End Users, and hosted by us pursuant to the Hong Kong Cloud Services, including making any required notifications to, or obtaining required consents from, third parties in relation to our  hosting of any personal information in connection with the Hong Kong Cloud Services.

4.    Notices

The recipient, address and fax for notices will be as follows:

General Manager, Hong Kong and Macau

Hitachi Data Systems Limited

33/F, Tower Two

Times Square

1 Matheson Street

Causeway Bay

Hong Kong

 

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ACCEPTABLE USE POLICY FOR THE CLOUD CONNECT SERVICES

This Acceptable Use Policy (“Policy”) describes the uses that are not acceptable in the use of the Cloud Connect Services (“Cloud Services”) and therefore are prohibited. This Policy forms part of, and must be read in conjunction with, the Agreement. Defined terms in this Policy are the same as in the Agreement, except where expressly stated otherwise.

We may modify this Policy at any time by posting a revised version on the Cloud Services Website. If you place an Order with us, start to use a new Cloud Service, or otherwise continue to use an existing Cloud Service once we have notified you of any Policy changes, you are deemed to have agreed to the latest version of this Policy.

If you or your End User violates this Policy, we may suspend or terminate the use of your Cloud Service, without limitation to any other remedy available to us with respect to such violation.

1.    No Network, System or Service Abuse

You must not use the Cloud Services Website, Cloud Services or any technology, infrastructure or networks used in the supply of these, in order to engage in, allow, promote or otherwise encourage illegal, irresponsible or destructive behavior, including:

Unauthorised use of an internet account or use of a computer without the owner’s authorization;
Unauthorised access to, or use of, data, systems and networks including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;
Unauthorised access to, or use of, data, systems and networks to distribute, publish, send, or facilitate any such conduct with respect to any commercial advertising, promotional materials and informational announcements, including unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”);
Collecting or using email addresses, mail headers, screen names or other identifiers without the explicit consent of the person identified (including, without limitation, phishing, internet scamming, password robbery, spidering, and harvesting) or use of a service to distribute software that covertly gathers information about a user or covertly transmits information about the user;
Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;
Interference with the supply of a service to any users of the Cloud Services or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks or “denial of service”(DoS) and any conduct that is likely to result in retaliation or network interference of this nature against us, the Cloud Services Website or the Cloud Services;
Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;
Monitoring or crawling of a system that impairs or disrupts the system being monitored or crawled;
Operating network services like open proxies, open mail relays, or open recursive domain name servers;
Using manual or electronic means to avoid any use limitations placed on a system, such as access and storage restrictions; and
Use of the service for distribution of advertisement delivery software unless the user has consented to such use and the software is readily removable by the user.

2.    Excessive Network Use

You may not use the Cloud Services Website, Cloud Services, or any technology, infrastructure or networks used in the supply of these in a way that unnecessarily interferes with their normal operation, or that consumes a disproportionate share of the resources used to provide them.

 

3.    Illegal, Harmful or Offensive Behavior

You may not use the Cloud Services Website, Cloud Services, or any technology, infrastructure or networks used in the supply of these for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available Content, or links to Content, that are illegal, harmful, or offensive. Prohibited activities or content include:

Illegal Activities. Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography, promoting illegal drugs, violating export control laws or relating to illegal arms trafficking.
Harmful or Deceptive Activities. Activities that may be harmful to others, our operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
Infringing Content. Content that infringes or misappropriates the copyright, trademark rights or other intellectual property or proprietary rights of others.
Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including Content that constitutes pornography, relates to bestiality or depicts non-consensual sex acts and other Content that may result in retaliation against us by offended viewers.
Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
Live Events. Live streaming of pornographic material is prohibited. We may prohibit you from streaming other live events where there is a special risk, in our reasonable discretion, that the event may violate other parts of this Policy.
Dangerous Use. Use of the Cloud Services in any situation where failure or fault of the Cloud Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Cloud Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities or medical devices.

4.    Monitoring and Enforcement

We may test and otherwise monitor your compliance with this Policy. We reserve the right, but do not assume the obligation, to investigate any violation of this Policy or misuse of the Cloud Services Website, Cloud Services, or any technology, infrastructure or networks used in the supply of these. We may:

investigate violations of this Policy or misuse of the Cloud Services Website, Cloud Services, or any technology, infrastructure or networks used in the supply of these; or
remove, disable access to, or modify any content or resource that violates this Policy; and
terminate the Agreement, any Order or any other agreement we have with you for use of the Cloud Services.

We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.

You must co-operate and ensure your End Users co-operate in any investigation and reporting activities that we undertake.

If you become aware of any violation of this Policy independently of us, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation.

You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.