Aurasma – Terms of Services

 

Acceptable Use Policy

This ACCEPTABLE USE POLICY ("AUP") describes acceptable use of and access to the SaaS offered by Hewlett-Packard Company and its subsidiaries and affiliates (collectively, "HP"). BY ACCESSING OR USING THE SAAS, YOU AGREE TO THE TERMS OF THIS AUP. If you violate this AUP or authorize or help others to do so, HP may immediately suspend or terminate your use of the SaaS with or without notice in accordance with the terms of the Customer Agreement. Unless otherwise defined herein, all capitalized terms used within this AUP have the same meaning as ascribed to such terms in the Customer Agreement.

PROHIBITED USE AND CUSTOMER CONTENT.

Customer may not upload Customer Content or use the SaaS in a manner that HP believes:

1.     Violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a "Law");

2.     Is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;

3.     Violates the rights of others, including, as examples, infringing or misappropriating any intellectual property or proprietary right of another;

4.     Advocates or induces illegal activity;

5.     Stalks, harasses, or harms anyone, including minors;

6.     Impersonates any person or entity or otherwise misrepresents Customer's affiliation with a person or entity;

7.     Modifies, alters, tampers with, repairs, or otherwise creates derivative works of any software included in the SaaS (except to the extent software included in the SaaS is provided to Customer under a separate license that expressly permits this activity);

8.     Except as allowed by local law, reverse engineers, disassembles, or decompiles the SaaS or HP Software included in the SaaS;

9.     Accesses or uses the SaaS in a way intended to avoid incurring fees or exceeding usage limits or quotas;

10.   Interferes with or disrupts the SaaS or servers or networks connected to the SaaS;

11.   Uses any high volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access the SaaS, or any other account or system holding, processing or transmitting information (for example computer systems or mobile devices) connected to the SaaS (each a "System");

12.   Attempts to gain unauthorized access to any portion of the SaaS or any System, whether through hacking, password mining, or any other means;

13.   Violates the security or integrity of a System, including, but not limited to:

a.     Accessing or using any System without permission, including attempts to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System;

b.     Monitoring data or traffic on a System without permission;

c.     Forging packet or email headers, or any part of a message describing its origin or route;

d.     Uploading Customer Content that contains malware (for example, viruses, worms, etc) or any other content that may compromise the SaaS; or

e.     Hacking, destabilizing, or adapting the Services, or altering another website to falsely imply it is affiliated with the SaaS;

14.   Connects to any users, hosts, or networks where Customer does not have permission to communicate with such users, hosts, or networks, including, for example:

a.     Monitoring or crawling a System so that the System is impaired or disrupted;

b.     Conducting denial of service attacks;

c.     Intentionally interfering with the proper functioning of any System, including any deliberate attempt to overload a system by any means;

d.     Operating network services like open proxies, open mail relays, or open recursive domain name servers; or

e.     Using means (manual or electronic) to avoid any use limitations placed on a System, such as access and storage restrictions;

15.   Distributes, publishes, sends, or facilitates unsolicited mass e-mailings, promotions, advertising, or solicitations, including commercial advertising and informational announcements;

16.   Alters or obscures mail headers or assume a sender's identity without the sender's explicit permission; or

17.   Collects replies to messages if those messages violate this AUP.

HP has the sole discretion to determine whether Customer Content or Customer's use of the Services is prohibited. All Customer Content is the sole responsibility of Customer.

MONITORING AND ENFORCEMENT.

While not obligated to perform investigations, in accordance with the terms of the Customer Agreement, HP may:

1.     Investigate violations of this AUP or misuse of the SaaS;

2.     Investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity;

3.     Remove, disable access to, or modify any Customer Content or resource that HP believes violates this AUP or any other agreement HP has with Customer for use of the SaaS; or

4.     Suspend or terminate provision of SaaS to Customer for uses that violate this AUP or any other agreement HP has with Customer for use of the SaaS.

HP may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. HP's reporting may include disclosing appropriate Customer information. HP 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 AUP.

REPORT VIOLATIONS

Customer can report abuse of this AUP to support@aurasma.zendesk.com

MODIFICATIONS TO THE AUP

HP may, in its sole and absolute discretion, modify this AUP from time to time. HP will post notice of such changes on the HP website, by email, or through Aurasma Studio or as provided in the Customer Agreement. If Customer objects to any such changes, Customer's sole recourse shall be to cease using the SaaS. Continued use of the SaaS following notice of any such changes shall indicate Customer's acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

CONTACT US

If Customer has any questions or suggestions regarding this AUP, please contact HP at support@aurasma.zendesk.com

 

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Customer Agreement

The following is the Customer Agreement applicable to you, which includes free trials and purchased subscriptions of the Software as a Service (SaaS):

CUSTOMER AGREEMENT TERMS APPLICABLE TO ALL USERS

1.     PLEASE READ CAREFULLY: THIS CUSTOMER AGREEMENT (“AGREEMENT”) IS BETWEEN THE CUSTOMER WHO ORDERS SAAS (“CUSTOMER”) AND HEWLETT-PACKARD COMPANY (“HP”). Customer’s use of and access to SaaS is governed by this Agreement and the terms of Customer’s Order. BY PURCHASING, USING, OR ACCESSING SAAS, OR BY CHOOSING THE “I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THESE TERMS MAY BE DISPLAYED, YOU AGREE TO THE TERMS BELOW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OR ACCESS SAAS.

2.     Definitions.

a.     Customer Content means any content (such as text, data, information, hyperlinks, software, graphics, images, or videos) that is provided to HP, or actions that are performed via Customer's account, whether provided or performed by Customer's employees, Customer's contractors, or Customer's customers and end users.

b.     Order” means the accepted order including any supporting material which the parties identify as incorporated either by attachment or reference (“Supporting Material”). Supporting Material may include (as examples) standard or negotiated service descriptions, data sheets and their supplements, and statements of work (each a “SOW”), and may be available to Customer in hard copy or by accessing a designated HP website.

c.     SaaS” means the online software-as-a-service solution that HP provides, including support, HP-branded Software, and related professional services as described in the Supporting Material, including the following data sheet:

www.aurasma.com/datasheet  

d.     Third Party Content” means any content (such as text, data, information, hyperlinks, software, graphics, images, or videos) that is accessible through the SaaS, excluding Customer Content and HP’s content (including HP-branded Software).

3.     Overview. Unless specifically authorized in the Supporting Material, SaaS may be used only for Customer’s internal business purposes and not for commercialization. The SaaS term is in the relevant Supporting Material or HP quotation (the “SaaS Term”).  During the SaaS Term, Customer may not use such HP Software installed on Customer infrastructure except in connection with receipt of SaaS.

4.     Scope and Order Placement. These terms may be used on a global basis by the parties’ “Affiliates”, meaning any entity controlled by, controlling, or under common control with a party. Affiliates participate under these terms by placing orders which specify product or service delivery in the same country as the HP Affiliate accepting the Order, referencing these terms, and specifying any additional terms or amendments to reflect local law or business practices.

5.     Order Arrangements. Customer may place orders with HP through our website.

6.     Support Services. HP’s support services will be described in the applicable Supporting Material, which will cover the description of HP’s offering, eligibility requirements, service limitations and Customer responsibilities, as well as the Customer systems supported.

7.     Eligibility. HP’s SaaS, service, support and warranty commitments do not cover claims resulting from:

a.     improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Supporting Material;

b.     modifications or improper system maintenance or calibration not performed by HP or authorized by HP;

c.     failure or functional limitations of any non-HP SaaS, software, or product impacting systems receiving HP support or service;

d.     malware (e.g. virus, worm, etc.) not introduced by HP; or

e.     abuse, negligence, accident, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond HP’s control.

8.     Dependencies. HP’s ability to deliver SaaS will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services.

9.     SaaS Performance. SaaS is consistent with generally recognized practices and standards for software-as-a-service.

10.   Remedies. This Agreement states all remedies for warranty claims. HP does not warrant that SaaS will be uninterrupted or error free. To the extent permitted by law, HP disclaims all other warranties.

11.   Intellectual Property Rights. No transfer of ownership of any intellectual property will occur under this Agreement. Customer grants HP a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for HP and its designees to perform the ordered services (including SaaS and the Customer Content). If deliverables are created by HP specifically for Customer and identified as such in Supporting Material, HP hereby grants Customer a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the deliverables internally.

12.   Intellectual Property Rights Infringement. HP will defend and/or settle any claims against Customer that allege that an HP-branded product or service as supplied under this Agreement, excluding any Customer Content or Third Party Content, infringes the intellectual property rights of a third party. HP will rely on Customer’s prompt notification of the claim and cooperation with our defense. HP may modify the product or service so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we will refund to Customer the amount paid for the affected product in the first year or the depreciated value thereafter or, for SaaS or support services, the balance of any pre-paid amount or, for professional services, the amount paid. HP is not responsible for claims resulting from any unauthorized use of the products or services. This section shall also apply to deliverables identified as such in the relevant Support Material except that HP is not responsible for claims resulting from Customer Content.

13.   Confidentiality. Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for 3 years from the date of receipt or (if longer) for such period as the information remains confidential. These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.

14.   Personal Information.

a.     For Customers outside of the EEA. Customer and HP shall comply with their respective obligations under applicable data protection legislation as a data controller and data processor, respectively. HP does not intend to have access to personally identifiable information of Customer (“Customer PII”) in providing SaaS. To the extent HP has access to Customer PII entered into HP’s SaaS infrastructure by Customer or stored on a system or device of Customer due to Customer’s chosen agent configuration, such access will likely be incidental to the provision of SaaS. Customer shall remain the data controller of Customer PII at all times. Customer acknowledges that HP may route, process or store, and could or may access data (including Customer PII) that Customer enters into HP’s SaaS infrastructure from countries other than the country from which Customer entered such data.

b.     For Customers in the European Economic Area (EEA).  Customer and HP shall comply with their respective obligations under applicable data protection legislation as a controller and processor, respectively. Customer shall remain the controller of Customer Personal Data (as defined in the Exhibit A) at all times. Exhibit A “SaaS Data Protection Regulations” forms part of this Agreement and takes precedence over any conflicting terms herein or in any Supporting Material.

15.   Security. Information about SaaS security controls are provided in the relevant data sheet, at the hp.com website, or can be otherwise provided at Customer’s request.

16.   Global Trade compliance. If Customer exports, imports or otherwise transfers products and/or deliverables provided under these terms, Customer will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. HP may suspend its performance under this Agreement to the extent required by laws applicable to either party.

17.   Limitation of Liability. HP’s liability to Customer under this Agreement is limited to the greater of $1,000,000 USD or the amount payable by Customer to HP for the relevant Order. Neither Customer nor HP will be liable for lost revenues or profits, downtime costs, or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; failure to pay fees due under this Agreement; nor any liability which may not be excluded or limited by applicable law.

18.   Disputes. If Customer is dissatisfied with SaaS and disagrees with HP’s proposed resolution, we both agree to promptly escalate the issue to a Vice President (or equivalent executive) in our respective organizations for an amicable resolution without prejudice to the right to later seek a legal remedy.

19.   Force Majeure. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations.

20.   Termination. Either party may terminate this Agreement on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, the other party may terminate this Agreement and cancel any unfulfilled obligations. Any terms in the Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

21.   Effect of Termination. Except for termination for cause, the termination of this Agreement shall not entitle Customer to any refund.

22.   Order of Precedence. To the extent that the terms of this Agreement conflict with other terms in any other agreement between Customer and HP, the terms in this Agreement shall control as to SaaS.

23.   General. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. The Agreement will be governed by the laws of the country of HP or the HP Affiliate accepting the Order and the courts of that locale will have jurisdiction; however, HP or its Affiliate may bring suit for payment in the country where the Customer Affiliate that placed the Order is located. Customer and HP 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 Delaware, excluding rules as to choice and conflicts of law.

ADDITIONAL TERMS APPLICABLE TO HP SOFTWARE

The following additional terms apply for the Aurasma SDK and such other HP-branded software products that HP makes available from time to time under this Customer Agreement as part of the SaaS and as further described in the Supporting Material:

24.   Delivery. HP may elect to deliver software and related product/license information by electronic transmission or via download.

25.   Software Performance. HP warrants that its branded software products will conform materially to their specifications and be free of malware at the time of delivery. HP warranties for software products will begin on the date of delivery and unless otherwise specified in Supporting Material, will last for ninety (90) days. HP does not warrant that the operation of software products will be uninterrupted or error-free or that software products will operate in hardware and software combinations other than as authorized by HP in Supporting Material.

26.   Product Warranty Claims. When we receive a valid warranty claim for an HP software product, HP will either repair the relevant defect or replace the product. If HP is unable to complete the repair or replace the product within a reasonable time, Customer will be entitled to a full refund of any unusable SaaS services as a result upon written confirmation by Customer that the relevant software product has been destroyed or permanently disabled.

27.   License Grant. HP grants Customer a non-exclusive license to use the version or release of the HP-branded software listed in the Order. Unless otherwise stated in the Supporting Material, permitted use is for internal purposes only (and not for further commercialization), and is subject to any specific software licensing information that is in the software product or its Supporting Material. For non-HP branded software, the third party’s license terms will govern its use.

28.   Updates. New software versions, releases or maintenance updates of the Downloadable Software (“Updates”), may be made available by HP from time-to-time as detailed in the Supporting Material. Updates are subject to the license terms in effect at the time that HP makes them available to Customer.

29.   License Restrictions. HP may monitor use/license restrictions remotely and, if HP makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software. Customer may use this archival copy without paying an additional license only when the primary system is inoperable. Unless otherwise stated in the Supporting Material, Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network. Licenses that allow use over Customer’s intranet require restricted access by authorized users only. Customer will also not modify, reverse engineer, disassemble decrypt, decompile or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute, in which case Customer will provide HP with reasonably detailed information about those activities.

30.   License Term and Termination. Unless otherwise specified, any license granted is only for the SaaS Term, provided however that if Customer fails to comply with the terms of this Agreement, HP may terminate the license upon written notice. Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to HP, except that Customer may retain one copy for archival purposes only.

31.   License Compliance. HP may audit Customer compliance with the software license terms. Upon reasonable notice, HP may conduct an audit during normal business hours (with the auditor’s costs being at HP’s expense). If an audit reveals underpayments then Customer will pay to HP such underpayments. If underpayments discovered exceed five (5) percent of the contract price, Customer will reimburse HP for the auditor costs.

32.   US Federal Government Use. If software is licensed 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 HP’s standard commercial license.

ADDITIONAL TERMS FOR PURCHASES

The following additional terms apply for purchases of SaaS:

33.   Prices and Taxes. Prices will be as quoted in writing by HP or, in the absence of a written quote, as set out on our website, or HP published list price at the time an order is submitted to HP. Prices are exclusive of taxes, duties, and fees unless otherwise quoted. If a withholding tax is required by law, please contact the HP order representative to discuss appropriate procedures. HP will charge separately for reasonable out-of-pocket expenses, such as travel expenses incurred in providing professional services.

34.   Invoices and Payment. Customer agrees to pay all invoiced amounts within thirty (30) days of HP’s invoice date. HP may suspend or cancel performance of open Orders or services if Customer fails to make payments when due.

ADDITIONAL TERMS FOR PROFESSIONAL SERVICES

The following additional terms apply for purchases of Professional Services:

35.   Professional Services. HP will deliver any ordered IT consulting, training or other services as described in the applicable Supporting Material.

36.   Professional Services Acceptance. The acceptance process (if any) will be described in the applicable Supporting Material, will apply only to the deliverables specified, and shall not apply to other products or services to be provided by HP.

37.   Change Orders. We each agree to appoint a project representative to serve as the principal point of contact in managing the delivery of services and in dealing with issues that may arise. Requests to change the scope of services or deliverables will require a change order signed by both parties.

38.   Services Performance. Services are performed using generally recognized commercial practices and standards. Customer agrees to provide prompt notice of any such service concerns and HP will re-perform any service that fails to meet this standard.

39.   Services with Deliverables. If Supporting Material for services define specific deliverables, HP warrants those deliverables will conform materially to their written specifications for 30 days following delivery. If Customer notifies HP of such a non-conformity during the 30 day period, HP will promptly remedy the impacted deliverables or refund to Customer the fees paid for those deliverables and Customer will return those deliverables to HP.

EXHIBIT A - SAAS DATA PROTECTION REGULATIONS

1.     Additional Definitions.

a.     The terms “controller”, “data subject”, “processor”, “process”, “processed”, “processing”, and “personal data” used in this Exhibit A shall be as defined in European Directive 95/46/EC.

b.     Customer Personal Data” means personal data of which Customer or its affiliates is the controller and which HP processes in the course of providing SaaS.

2.     Data Processing.

a.     Customer hereby appoints HP as a processor of Customer Personal Data. Customer and HP shall comply with all data protection laws to which they are subject, as a controller and processor respectively, and which are applicable to their information security, privacy and data protection obligations in connection with Customer Personal Data.

b.     HP shall only process Customer Personal Data as required to provide SaaS and in accordance with the Customer’s written instructions (which may be specific instructions or instructions of a general nature as set out in this Agreement or as otherwise notified by the Customer to HP under this Agreement) and to the extent that such instructions are not compatible with HP’s obligations under this Agreement they shall be implemented as agreed by the parties.

c.     HP has implemented the HP SaaS technical and organizational measures to protect Customer Personal Data against accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure, details of which are provided at the hp.com website or can otherwise be provided on Customer’s request. These include:

                                          i.    Physical access controls

                                         ii.    Access Controls

                                        iii.    Access Limitation Controls

                                        iv.    Input Controls

                                         v.    Job Controls

                                        vi.    Availability Controls

                                       vii.    Data Separation

d.     HP will ensure that all employees involved in the processing of Customer Personal Data are authorized personnel with a need to access the data, are bound by appropriate confidentiality obligations and have undergone appropriate training in the protection of personal data.

e.     Where the Supporting Material identifies categories of Customer Personal Data or other Customer-provided data that are to be returned to Customer upon termination, HP will supply such data to Customer in the agreed format and will delete from HP’s own systems any remaining copies of such Customer Personal Data or other data, unless legislation applicable to it prevents it from doing so.

f.      HP will within five (5) business days of receipt, refer to Customer any queries from data subjects in connection with Customer Personal Data, for Customer to deal with.

g.     HP will on written request of Customer promptly amend or delete any Customer Personal Data to the extent that Customer is not able to amend or delete the data itself.

h.     Customer Personal Data will be transferred to HP’s parent company, Hewlett Packard Company in the United States of America, and onward to other affiliate and third party subcontractors located outside the EEA and Switzerland who support SaaS, a list of which is available upon request.

i.      Customer acknowledges that HP is a party to the United States Safe Harbor program and certified under the EU-US and/or Swiss-US Safe Harbor framework (“Certification”). For as long as the EU-US and Swiss-US Safe Harbor Frameworks are recognized by the European Union as a legitimate basis for the transfer of Personal Data from the European Union or Switzerland to a certified entity located in the United States of America, HP warrants that:

                                          i.    Hewlett-Packard Company is and shall remain certified under the Certification;

                                         ii.    the processing of Customer Personal Data which originates from the EEA and Switzerland is within the scope of the Certification; and

                                        iii.    it shall notify Customer if Hewlett Packard Company does not renew or loses the Certification, or amends the Certification so that the processing of Customer Personal Data which originates from the EEA and Switzerland is no longer within the scope of the Certification.

j.      When HP obtains formal approval for binding corporate rules for processors (BCR-P), the parties may agree to rely on the BCR-P for transfers of Customer Personal Data. The relevant information and additional contract terms will be provided to Customer on request.

k.      HP will ensure that any affiliate or third party subcontractor involved in processing Customer Personal Data enters into a written agreement with HP (which may be an inter-company agreement in the case of affiliates), which includes obligations substantially similar to those contained in this Exhibit A and appropriate to the nature of the processing involved.