End User License Agreement
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY.
DOWNLOADING, INSTALLING OR USING THE ACCOMPANYING SOFTWARE CONSTITUTES
ACCEPTANCE OF THIS END USER LICENSE AGREEMENT.
HGST, INC. AND ITS AFFILIATES (COLLECTIVELY, “HGST”) IS WILLING TO LICENSE THE
SOFTWARE ONLY IF YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE
AGREEMENT (THE “EULA”).

1.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR OTHERWISE
EXPRESSING YOUR AGREEMENT TO THE TERMS CONTAINED IN THIS END USER LICENSE
AGREEMENT AND THE BROADER THE AGREEMENT (AS DEFINED BELOW), YOU INDIVIDUALLY
AND ON BEHALF OF THE ENTITY THAT YOU REPRESENT (COLLECTIVELY, “LICENSEE”)
CONSENT TO BE BOUND BY THIS EULA AND THE AGREEMENT. IF YOU DO NOT OR CANNOT
AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, THEN YOU WILL NOT HAVE ACCESS
TO THE SOFTWARE. Capitalized terms used, but not defined, herein shall have the meanings given
such terms in the Agreement.
2.

Overview.

2.1.
No Sale. This EULA governs Licensee’s use of and access to the Software (as
defined below) for any Software first placed in use on or after the release date of this EULA (the
“Release Date”). Licensee agrees and acknowledges that all Software is licensed and not sold, and that
all use of “purchase” or “sell” in connection with any Software shall be deemed to mean “license.” Any
term in Licensee’s purchase order or other document purporting to require the sale of Software instead
of the license thereof is hereby rejected by HGST and is not part of the Agreement.
2.2.
No Implied Licenses; Licensed Material. Nothing in this EULA shall be deemed
to provide to Customer any right, title or interest in (i) any product sold by HGST or an authorized reseller
of HGST (a “Product”); (ii) any instance of a program, module, feature, function, service, application,
operation or capability of the software HGST intentionally delivers under this EULA (“Software”); or (iii)
any documentation related to any Software (the “Documentation”), other than the express license rights
set forth in Section 4 hereof. All rights not expressly granted to Licensee are reserved by HGST and its
licensors.
2.3.
Delivery. Unless otherwise stated by HGST, Software will be delivered
electronically. Delivery is considered complete when HGST provides access to the Software download.
For Users who purchase, or obtain, multiple licenses, delivery for all licenses is complete when HGST
provides access to the first copy of the Software.
2.4.

3.

Fees. Any and all fees paid are non-refundable.

Definitions. In this EULA, the following capitalized terms shall have the meaning set forth

below:

3.1.

“Agreement” shall have the meaning set forth in Section 10.7.

3.2.
“Affiliate” of a Party means such Party’s parent corporation, an entity under the
control of such Party’s parent corporation at any tier or an entity controlled by such Party at any tier. For
these purposes, “control” shall mean the power to direct or cause the direction of the management and
policies of the entity, whether through the ownership of more than 50% of the outstanding voting
interests in such entity or otherwise.
3.3.

“Commercial Software” means software that HGST intends to be used by

businesses.
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3.4.

“Feature” means an activity or class of activities that can be undertaken by the

3.5.

“Party” means either Licensee or HGST and “Parties” means both Licensee and

3.6.

“Software” has the meaning set forth in Section 2.2.

Software.
HGST.

3.7.
“Software Key” means a code or key that is supplied by HGST allowing for the
use of Commercial Software, which may provide capacity, device or other usage restraints consistent
with the applicable order. For the avoidance of doubt, the term “Software” includes the applicable
“Software Key”.
3.8.
“Third Party” means an individual or entity other than Licensee, Licensee’s
Affiliates, HGST and HGST’s Affiliates.
3.9.
“Territory” means the country in which Licensee received the Software, unless
otherwise specified in a purchase order agreed to by HGST.
3.10. “Update” means an update to the Software that is supplied by HGST and that
may incorporate (i) corrections of any substantial defects; (ii) fixes of any minor bugs; and/or (iii) at the
sole discretion of HGST, minor enhancements to the Software; provided, however, that Updates shall
not include Upgrades. Updates are generally identified by HGST by a change to the version number to
the right of the first decimal point (e.g., version 3.1 to 3.2).
3.11. “Upgrade” means a new release of the Software that incorporates substantial
changes or additions that (i) provide additional value and utility; (ii) may be priced and offered separately
as optional additions to the Software; and/or (iii) are not generally made available to HGST’s customers
without a separate charge. Upgrades are generally identified by HGST by a change to the version
number to the left of the first decimal point (e.g., version 3.2 to 4.0).
3.12.

“User” means an individual able to use or gain access to any Software

functionality.

4.

License Grant.

4.1.
Grant. Subject to the terms and conditions of this Agreement, HGST hereby
grants to Licensee, and Licensee accepts, upon delivery of the Software, a nonexclusive,
nontransferable license to install and use (subject to the limitations in Sections 4.5 and 4.6) each copy of
the Software, in executable form only, supplied by HGST, and to use the accompanying Documentation,
only for Licensee’s internal use and only as authorized in the Agreement. Licensee may make a
reasonable number of copies of the Software for inactive backup and archival purposes.
4.2.
Trial Period. If Licensee receives the Software for a trial period, Licensee will be
licensed to use the Software during the trial period. Subject to Section 7 below, if Licensee does not pay
the applicable License fee and activate the Software, Licensee’s right to use the Software will end at the
end of the trial period. The trial period will end either after the expiration of the trial period or when
Licensee activates the Software, whichever occurs first.
4.3.
Software Keys. HGST may provide Licensee with a Software Key to unlock the
Software or certain Software Features agreed to by the Parties as part of the Agreement. Licensee’s
license to the Software Key is limited to a license to use the Software Key to activate the Software only
for the Features that HGST has agreed to activate. Any contractual limitations on the scope of
Licensee’s license to Software shall apply regardless of whether a Software Key enforces such
limitations.

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4.4.
Network Usage. Licensee understands and agrees that HGST may use
Licensee’s internal network and Internet connection for the limited purpose of transmitting license-related
data at the time of installation, registration, use or update of Software to a HGST-operated license
server. At such time, HGST may validate the license-related data in order to protect HGST against
unlicensed or illegal use of the Software. HGST may, at its option, only permit activation of the Software
upon exchange of license related data between Licensee’s computer and the HGST license server.
Some Software may have license verification mechanisms that do not require the use of Licensee’s
internal network and Internet connection, and HGST shall not use Licensee’s network or Internet
connection for such Software.
4.5.

Support, Updates and Upgrades.

(a)
For select Software products, HGST may offer support. Any offered
support must be purchased separately and requires the payment of a separate fee. The description,
terms, and conditions of support are available via HGST’s support portal.
(b)
Updates. Updates or Upgrades to the Software may be made available
to Licensee pursuant to a separate agreement. Any Update or Upgrade provided by HGST shall be
licensed under the terms of the Software that is being updated by such Update or Upgrade, as the case
may be.
(c)
No Obligation. Nothing in this EULA requires HGST to provide Updates
or Upgrades to Licensee or Licensee to accept such Updates or Upgrades. The provision of any
Updates or Upgrades shall be governed by a separate agreement, or by a purchase order issued by
Licensee and accepted by HGST, in HGST’s sole discretion, and may require the payment of additional
fees.
4.6.
No Right to Sublicense or Assign. Except to the extent otherwise required by
applicable law or expressly provided for assignment generally in the Agreement, including without
limitation in this EULA, no license provided in this Section 4 is sublicensable, transferable or assignable
by Licensee, including by operation of law, change of control, merger, purchase or otherwise, without the
prior written consent of HGST in each instance. Other than as expressly permitted by the foregoing, any
attempted sublicense, transfer or assignment by Licensee shall be null and void.
4.7.
License Prohibitions. Notwithstanding anything to the contrary in this EULA,
Licensee shall not, alone, through a User, an Affiliate or a Third Party (or allow a User, an Affiliate or a
Third Party to):

(a)

sell, transfer, license, lease pledge, loan or otherwise make available to

Third Parties any Software;

(b)

modify any Software;

(c)
reverse compile, reverse assemble, reverse engineer or otherwise
translate all or any portion of any Software;
(d)

pledge, rent, lease, share, distribute, sell or create derivative works of

any Software;

(e)
use any Software on a time sharing, service bureau, application service
provider (ASP), rental or other similar basis;
(f)

make copies of any Software, except as provided for in the license grant

above;

(g)
remove, alter or deface (or attempt any of the foregoing) proprietary
notices, labels or marks in any Software;
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(h)
distribute any copy of any Software to any Third Party, including without
limitation selling any Product with Software in a secondhand market;
(i)
disclose the results of testing or benchmarking of any Software to any
Third Party without the prior written consent of HGST;
(j)
use any Update or Upgrade beyond those to which Licensee is entitled
or with any Software to which Licensee does not have a valid, current license;
(k)
circumvent or disable HGST’s copyright protection mechanisms or
license management mechanisms;
(l)

use the Software in violation of any applicable law or to support any

(m)

attempt any of the foregoing.

illegal activity; or

HGST expressly reserves the right to seek all available legal and equitable remedies to prevent any of
the foregoing and to recover any lost profits, damages or costs resulting from any of the foregoing.

4.8.
Maximum Usage. Licensee shall not use Software in excess of the amount
licensed to Licensee, as specified in the Agreement, which may be on a per user, per concurrent active
device, capacity or other metric as established under the Agreement.
4.9.
Legal Exception. Licensee agrees that, to the extent that any applicable laws
(including without limitation national laws implementing EC Directive 91/250 on the Legal Protection of
Computer Programs) give Licensee the right to reverse engineer any Software to make it interoperable
without HGST’s consent, before Licensee exercises any such rights, Licensee shall notify HGST of such
desire and, no later than sixty (60) days following receipt of such request, HGST may decide either:
(a) to perform the work to achieve such interoperability and charge its then-standard rates for such work
to Licensee; or (b) to permit Licensee to reverse engineer parts of the Software only to the extent
necessary to achieve such interoperability. Only if and after HGST, at its sole discretion, partly or
completely denies Licensee’s request, shall Licensee exercise its statutory rights.
4.10. Third Party Software. Portions of the Software may be owned by one or more
Third Parties and licensed to HGST. HGST and Licensee intend and agree that Software owned by
Third Parties and supplied hereunder is being sublicensed to Licensee, that such Third Parties retain
ownership of and title to such Software, network and that such Third Parties may directly enforce
Licensee’s obligations hereunder to protect their respective interests in such Software. The warranty
and indemnification provisions set forth herein shall not apply to Software owned by Third Parties and
supplied hereunder. If portions of the Software are owned by one or more Third Parties, the
licenses/terms applicable to such Third Party licenses are set forth in Exhibit A.
UNLESS OTHERWISE AGEED TO BY THE THIRD PARTY, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, THIRD PARTY SOFTWARE COMPONENTS AND DOCUMENTATION ARE PROVIDED “AS
IS”. NEITHER HGST NOR THE THIRD PARTY PROVIDER MAKES ANY WARRANTY RELATED TO
THE THIRD PARTY SOFTWARE COMPONENT, STATUTORY, EXPRESS OR IMPLIED, AND EACH
SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND
THE DOCUMENTATION.

4.11.

Product-Specific Terms.

(a)
Commercial Software Audit. Licensee hereby grants to HGST, itself or
using an independent third party auditor, the right to audit Licensee’s books, records and systems during
normal business hours upon seven (7) days’ prior written notice, no more often than once per annum
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regarding the usage of Commercial Software under the Agreement. In the event such audit identifies
material non-compliance with this EULA or the Agreement between Licensee and HGST, Licensee shall
pay HGST’s costs of such audit.

5.
Confidentiality. Subject to any other confidentiality restrictions set forth in the Agreement,
Licensee agrees the Software and Documentation are the confidential information of HGST. Licensee
shall maintain the Software and Documentation in confidence, using the same degree of care it uses for
its own confidential information of a similar nature, which shall be no less than reasonable and
customary efforts in the software industry.
6.
Software Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS
PROVIDED FOR IN THE AGREEMENT, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED
“AS IS”. HGST MAKES NO OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND
THE DOCUMENTATION. IN ADDITION, HGST DOES NOT WARRANT THAT THE SOFTWARE’S
OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE
CORRECTED.
7.

Disabling Code.

7.1.
Disabling Code. Software may be provided to Licensee with disabling code that
allows HGST to disable such Software. Any Updates or Upgrades to the Software may include disabling
code. HGST agrees not to invoke such disabling code except as provided for in Section 7.2, without
Licensee’s prior consent, which may be given by telephone or email.
7.2.
Invocation of Disabling Code. In addition to the invocation of disabling code
when HGST has received Licensee’s consent described in Section 7.1, HGST may, at its option, invoke
disabling code in HGST’s Software without receiving Licensee’s consent (i) if in HGST’s sole, reasonable
discretion, HGST believes that such Software has been, is being or will be used in violation of laws; (ii) if
HGST is required to do so, because of a court or regulatory order; (iii) if Licensee has not paid the
applicable License Fee by the expiration of the Software trial period; or (iv) if Licensee has used the
Software other than as authorized by Licensee’s license. HGST shall have no liability to Licensee for
any good faith invocation of any such disabling code.

8.

Exclusive Remedies and Limitation of Liability.

8.1.
Definitions. For purposes of the exclusive remedies and limitations of liability set
forth in this Section 8, HGST shall be deemed to include its directors, officers, employees, agents,
representatives, shareholders, subcontractors, licensors and suppliers; and “damages” shall be deemed
to refer collectively to all injury, damage, loss or expense incurred.
8.2.
Maximum Liability. Except as may otherwise be provided in the Agreement,
HGST’s maximum aggregate liability arising from or relating to this EULA or the use of the Software and
Products shall not to exceed the total amount paid by Licensee to HGST for the applicable Software
during the twelve (12) month period that immediately preceded the event that gave rise to the applicable
claim.
8.3.
Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
EULA BUT SUBJECT IN ALL RESPECTS TO THE AGREEMENT, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, HGST SHALL NOT BE LIABLE FOR INCIDENTAL, SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO THE COST
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OR
INTERRUPTION OF USE, LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR
NOT HGST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION
SHALL APPLY EVEN IN THE EVENT OF THE FAILURE OF AN EXCLUSIVE REMEDY.

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9.

Term and Termination.

9.1.
Term. The term of this EULA is while any Software is under Licensee’s control or
possession, unless terminated earlier (the “License Term”).
9.2.
Termination. HGST shall have the right to terminate this EULA (a) upon thirty
(30) days’ prior written notice to Licensee if Licensee has not cured any material breach of this EULA by
the end of such thirty (30) day notice period; (b) if Licensee has not paid an invoice to HGST regarding
such Software sixty (60) days after such invoice is due, at any time thereafter upon written notice to
Licensee; (c) if the Software is found to infringe or misappropriate any Third Party’s intellectual property
or proprietary rights, or becomes subject to an injunction prohibiting its use, or HGST reasonably
believes either of the foregoing conditions is likely to occur; or (d) as otherwise provided for in the
Agreement. Upon termination of this EULA for any reason, (i) Licensee shall be responsible for payment
for all purchase orders delivered to Licensee by HGST before the effective date of termination; and (ii)
Licensee shall destroy all copies of the Software under Licensee’s control or possession, and provide
HGST with reasonably requested evidence of the destruction of copies of the Software.
9.3.
Survival. The provisions of Sections 1, 2, 4.5, 4.6, 4.8, 4.9, 5, 6, 7, 8, 9.3, and 10
of this EULA shall survive any termination in accordance with their terms, in addition to any accrued
obligations.

10.

Miscellaneous.

10.1. Choice of Law; Jurisdiction. The Agreement shall be governed by the laws of the
State of California, excluding (a) its conflicts of law rules that would result in the application of the law of
any other jurisdiction; and (b) the United Nations Convention for the International Sale of Goods. The
federal and state courts located in San Jose, California shall have exclusive jurisdiction with respect to
any dispute arising under this Agreement.
10.2. Assignment. Neither Party may assign its rights and obligations hereunder
without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may
assign this EULA to any Affiliate of the other or to an acquirer (by purchase, merger or otherwise) of all
or substantially all of such Party’s business or assets relating to this EULA, provided that (i) the assignee
agrees in writing to be bound by the terms and conditions of this EULA, (ii) neither the assignor nor
assignee are in default hereunder. Any attempted assignment other than as permitted shall be null and
void.
10.3. Non-Waiver. No course of dealing or failure of either party to strictly enforce any
term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition.
In the event of any breach or threatened breach of Section 4, Licensee agrees that HGST will suffer
irreparable damage for which HGST will have no adequate remedy at law. Accordingly, in addition to
any other remedy, HGST shall be entitled to injunctive and other equitable remedies to prevent or
restrain such breach or threatened breach, without the necessity of proving actual damages or posting
any bond.
10.4. Export Regulations. Licensee understands that HGST is subject to regulation by
the U.S. government and its agencies, which prohibit export or diversion of certain technical products
and information to certain countries and individuals. Licensee warrants to HGST that Licensee will
comply in all respects with all export and re-export restrictions applicable to the technology and
documentation provided hereunder.
10.5. Restricted Party. Licensee represents to HGST that Licensee is not a Restricted
Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran,
Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to
U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from
engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity
List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and
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Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities
involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or
biological weapons; or (4) affiliated with or a part of any non-U.S. military organization. Licensee shall
not sell, resell, loan, disclose, or otherwise transfer any Software, Product or Documentation to any
Restricted Person without prior, express written authorization from HGST and the appropriate U.S.
Government agency. If Licensee becomes a Restricted Person during the Term, this EULA shall
automatically terminate and Licensee shall immediately cease all use of the Software.

10.6. United States Government Restricted Rights. The Software and Documentation
is provided with restricted rights and qualifies as “commercial items” consisting of “commercial computer
software” and “computer software documentation” as such terms are defined and used at FAR (48
C.F.R.) 2.101 and FAR 12.212. Use, duplication, or disclosure by the government is subject to
restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer SoftwareRestricted Rights at 48 C.F.R. S:52.227-19, as applicable. For clarity, this Section 9.6 shall also be
construed to apply to the state or local government counterparts, or the foreign counterpart specified as
the Territory, as applicable.
10.7. Order of Precedence; Entire Agreement. To the extent of any conflict among this
EULA, any additional terms in an agreement signed by Licensee and HGST, any HGST “click-accept”
agreement, any terms on a purchase order and HGST’s terms and conditions of sale, the order of
precedence shall be (a) an agreement signed by Licensee and HGST; (b) this EULA; (c) a “click-accept”
agreement, including any agreement regarding the Features to be included as part of the Software; (d)
HGST’s terms and conditions of sale; and (e) HGST’s purchase order acceptance (collectively, (a)-(e),
after applying the order of precedence, the “Agreement”). The terms and conditions contained in the
Agreement supersede all prior oral or written understandings between the Parties and shall constitute
the entire agreement between the Parties with respect to the subject matter of the Agreement. This
Agreement shall not be modified or amended except by a writing signed by Licensee and HGST.
10.8. Construction; Severability. The headings used in this Agreement are for
reference purposes only and will not be deemed to limit, expand or in any way affect the interpretation of
any term or provision hereof. If any provision or part hereof shall be held to be invalid or unenforceable
for any reason, then the meaning of such provision or part hereof shall be construed so as to render it
enforceable to the extent feasible. If no feasible interpretation would save such provision or part hereof,
it shall be severed herefrom, but without in any way affecting the remainder of such provision or any
other provision contained herein, all of which shall continue in full force and effect unless such severance
effects such a material change as to render the Agreement unreasonable.

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