A.  Definitions

 

1)   “Orasi CloudPerform” means the hosted, cloud version of the HP LoadRunner Software product that is made available to You from Orasi as an Orasi branded machine image through the use of the Enhanced Product.

2)   “Instance” means each implementation of the Orasi CloudPerform bundle installed on an Orasi physical or virtual server that You launch.

3)   “Service” means access to and use of the Orasi CloudPerformCloud Perform bundle pursuant to Your access and use agreement with Orasi.

4)   “Virtual User” or “VU” means a software process emulating users executing an end user use interaction against an application under test (“AUT”).

5)   “VUD” means one Virtual User for the Web 2.0 protocol that may be executed in an unlimited number of runs against a single AUT within a single twenty four (24) hour period (i.e., one day) from first execution.

6)   “Territory” means the United States of America and Canada.

7)   “Affiliate means an end user entity that owns, is owned by, or is under common ownership with, a party.

 

B.  Service Terms and Restrictions

 

1)                  You are granted a limited, non-exclusive, non-transferable, revocable right to access and use the Service in accordance with the Documentation and the provisions of this agreement only on an Instance basis for Your own and your Affiliate’s internal business purposes, or if you are a consultant that is purchasing the right to access and use the Service solely on behalf of an end user, then only for such end user’s and its Affiliates’ internal business purposes.

 

2)                  Upon any expiration or termination of this agreement, Your rights and licenses to access and use the Service will end immediately.

 

3)                  Your Instances may only be used with the Enhanced Product.

 

4)                  You are allowed to purchase Instances if You--and Your Affiliates if You will use Your Instances for testing their AUTs--are a person or entity physically located in the Territory. However, Your AUTs may be located outside the Territory, and remote execution of tests may take place outside the Territory as well.

 

5)                  Each Instance You purchase is a bundle of components consisting of one LoadRunner controller with monitors for use with up to 250 VUDs that may be executed in an unlimited number of test runs against a single AUT within a single 24 hour period from first execution.

 

6)                  You may use the controller for an Instance only with the VUDs for that Instance. You may not use the controller with any other VUDs for any other Instances you have purchased or with any other VUs or VUDs from any source.

 

7)                  You may use the VUDs for an Instance only with the controller for that Instance. You may not use the VUDs with any other controllers for any other Instances you have purchased or with any other controllers from any source, whether for bursting or any other purpose.

 

8)                  Each Instance is metered to enable load testing for no more than 24 hours from the moment You first launch that Instance for the first execution of a test. The 24 hour clock runs continuously without interruption. It cannot be stopped and restarted, even if You are not using the Instance for testing during the entire period.  

 

9)                  You are limited to using each Instance independently of any others. Instances may not be combined, whether for bursting or for any other purposes. You may not purchase and use more than one Instance per AUT, per day.

 

10)              You may not share Your Instances with other persons or entities. Each instance of a bundle is dedicated for Your own use and on behalf of Your Affiliates as authorized above.

 

11)              You are authorized to use the Service for load testing, and only for load testing in non-production environments. You may not use the Service for any other purpose, including for automating operational tasks such as backup, synchronization, or migration of data in production environments. Your Instance are enabled by a license key for the Web 2.0 protocol and no more than 250 VUDs. You agree not to use any method or device to disable or override the license key, or to otherwise exceed the type and quantity of VUDs that have been enabled.

 

12)              You may access and use the Orasi CloudPerform only as a wholly integrated product. You may not access or use components or other parts of the Orasi CloudPerform on a separate, stand-alone basis.

13)              You may not copy or download all or any part of the OrasiCloud Perform.

14)               You may not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Orasi CloudPerform. Where You have other rights mandated under statute, You will provide Orasi with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.

15)              You may not distribute, resell, sublicense, lease, transfer or rent the Service or extend the Service to any other person or entity. You may not use the Service to provide Your own services to, or for the benefit of, any other person or entity, unless you are a consultant as authorized above. You may not make the Orasi CloudPerform available through a commercial timesharing, service bureau, hosted or subscription service, or through repackaging of the Orasi CloudPerform using the Enhanced Product.

16)              Notwithstanding anything in this agreement to the contrary, software included in or with the Orasi CloudPerform that is provided under public domain or open source license agreements that accompany such software is governed solely by the terms and conditions of such license agreement, and You may use and exercise other rights and licenses with respect to such software in accordance with such license agreement, which You hereby accept. Any such public domain or open source software has been identified in the Documentation and/or or at the following website of the Hewlett- Packard Company: www.hp.com/go/hpsoftwaresupport. If any such open source software is licensed under the GNU General Public License,  the GNU Lesser General Pubic License or any other open source license that requires that the distributor in a hosted service environment provide You with a complete, machine-readable copy of the applicable source code for the applicable open source binary code ("GPL and Other Software"), it is  either: (i) included in program files in the Orasi CloudPerform; or (ii) upon your written request, HP or Orasi will provide to You, for a fee covering the cost of distribution, a complete machine-readable copy of the GPL and Other Source Code by mail or from a download site provided by HP.

17)              You agree to comply will all applicable laws and regulations in Your use of the Service. You may not (i) use the Service for the purpose of any illegal activities or for any wrongful or improper purpose, such as for any denial of service attacks, or (ii) remove, obscure, or alter any trademarks or other intellectual property or proprietary rights notices appearing on or contained within the Service.  You may not use Orasi CloudPerform in any manner which could damage, disable, overburden, or impair the Orasi CloudPerform or interfere with any other party's use and enjoyment of Orasi CloudPerform. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through Orasi CloudPerform.

 

 

18)              HP is not responsible for Your use of the non-HP website through which you obtain access to the Service, including the accuracy, completeness, timeliness, reliability, or availability of the non-HP website or any third party information, software, documentation, data or other content You use or retrieve from the non-HP website.

 

19)              The Orasi CloudPerformCloud Perform contains software and associated Documentation licensed from third parties that are confidential to, and trade secrets of, such parties. You may use such software and its Documentation only as part of the Orasi CloudPerform in accordance with this agreement and will not disclose it to third parties

20)              To the extent this restriction is not prohibited under applicable law, You may not disclose to any third party the results of any performance benchmarks You run on all or any part of the Orasi CloudPerformCloud Perform or detailed comparisons You make between the Orasi CloudPerformCloud Perform and any of Your own products or third-party products

 

21)              You will employ commercially reasonable procedures and precautions to prevent unauthorized access to and use of Your Instances, including complying with the requirements   in this agreement for maintaining the security of Your Service account identifier and associated private key and bearing responsibility for all activities under Your account with respect to Your Instances.

 

C.  LIMITATION OF LIABILITY

 

IN NO EVENT SHALL HP, ORASI, OR ANY OF THEIR AFFILIATES AND SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, DAMAGES FOR (A) LOSS OF PROFITS OR REVENUES, (B) BUSINESS INTERRUPTION, (C) DOWNTIME COSTS, (D) FAILURE TO REALIZE EXPECTED SAVINGS, (E) LOSS, DISCLOSURE, UNAVAILABILITY OF, OR DAMAGE TO, DATA INFORMATION OR OTHER CONTENT, OR (F) LOSS OF PRIVACY, IN EACH CASE ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY, EVEN IF HP, ORASI, OR ANY OF THEIR AFFILIATES OR ANY OF THEIR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH FOREGOING DAMAGES AND EVEN IF ANY  REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

 

D.  Intellectual Property Ownership

You agree that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Orasi and/or its licensors. The limited right expressly granted to You in this agreement to access and use the Service does not convey to You any other rights or licenses in or to the Service or any associated intellectual property rights of Orasi and/or its licensors, all of which are reserved by Orasi and/or its licensors. You agree not to display or use any trademarks, logos, product or service names of Orasi and/or its licensors associated with the Service without prior written permission. Third-party suppliers and licensors of Orasi are intended beneficiaries under this agreement and may independently protect their rights in the Orasi CloudPerform in the event of any infringement. If, in connection with Your use of the Service, You elect to communicate to HP any suggestions for improvements or other changes to the Orasi CloudPerform (“Feedback”), HP will own, and you agree to assign to HP, all right, title, and interest in and to the Feedback. In that case, HP will be entitled to use the Feedback without restriction even if you have designated any of the Feedback as confidential. You agree to take such actions and execute such documents as may be reasonably requested by HP in order for it to perfect its right, title and interest in and to any Feedback.

 

E.  PRIVACY AND DATA PROTECTION LAWS AND SECURITY

 

YOU ACKNOWLEDGE THAT ORASI COMPUTING ENVIRONMENT FOR YOUR INSTANCES IS OWNED, OR LICENSED, AND OPERATED BY ORASI AND NOT HP. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT THE DATA PROTECTION AND PRIVACY PROTOCOLS IN PLACE FOR THE ORASI CLOUDPERFORM ARE SUFFICIENT TO MEET YOUR REQUIREMENTS AND ANY APPLICABLE LEGAL OBLIGATIONS. THE USE OF THE ORASI CLOUDPERFORM DOES NOT GRANT ACCESS TO, OR OTHERWISE DISCLOSE, YOUR DATA OR YOUR PERSONALLY IDENTIFIABLE INFORMATION TO HP.  IN THE EVENT HP COLLECTS OR OTHERWISE HAS ACCESS TO ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION, SUCH COLLECTION AND USE SHALL BE GOVERNED BY HP’S PRIVACY STATEMENT AVAILABLE ON THE BOTTOM OF ANY HP.COM WEBSITE. “PERSONALLY IDENTIFIABLE INFORMATION” MEANS INFORMATION WHICH CAN BE USED TO DISTINGUISH OR TRACE AN INDIVIDUAL’S IDENTITY, EITHER ALONE OR WHEN COMBINED WITH OTHER PERSONAL OR IDENTIFYING INFORMATION WHICH IS LINKED OR LINKABLE TO A SPECIFIC INDIVIDUAL.

 

SECURITY OF YOUR INSTANCES OF IS DEPENDENT ON THE SECURITY CONFIGURATIONS (E.G., SECURITY GROUPS, KEY PAIRS, ACCOUNT IDS, NETWORK PERMISSIONS) YOU SET FOR THE ORASI CLOUDPERFORM. YOU ARE SOLELY RESPONSIBLE FOR SETTING THOSE CONFIGURATIONS, AND HP IS NOT RESPONSIBLE FOR ANY POTENTIAL SECURITY VULNERABILITIES THAT MAY RESULT FROM SETTINGS YOU SELECT OR ALLOW TO EXPIRE. IN OTHER RESPECTS, YOU ARE RESPONSIBLE FOR TAKING YOUR OWN STEPS TO MAINTAIN APPROPRIATE SECURITY, PROTECTION AND BACKUP OF ANY DATA OR OTHER CONTENT THAT YOU PROCESS IN OR UPLOAD TO YOUR INSTANCES. HP RECOMMENDS YOU USE ENCRYPTION TECHNOLOGY TO PROTECT ANY SUCH DATA AND CONTENT FROM UNAUTHORIZED ACCESS.

 

F. ORASI CLOUDPERFORM MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.  PAST PERFORMANCE OF ORASI CLOUDPERFORM CANNOT BE RELIED UPON AS A GUIDE TO FUTURE PERFORMANCE. ORASI CLOUDPERFORM IS PROVIDED "AS IS" AND TO THE EXTENT PERMITTED BY RELEVANT LAW WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

G.  General

1)   You may not assign, sublicense, delegate or otherwise transfer all or any part of this agreement or Your rights under it, and any attempt to do so will be null and void. 

2)   If the Service is used in the performance of a U.S. Government prime contract or subcontract, You agree that the Service, including the Orasi CloudPerform software and technology which were developed solely at private expense, are provided with restricted rights under commercial terms customarily provided to the public only as set forth in this agreement in accordance  with FAR 12.211 ( Technical Data)  and 12.212 ( Software), and for Department of Defense transactions, DFARS 252.227-7015 (Technical Data-Commercial Items) and DFARS 227.7202-3 ( Rights of Commercial Computer Software or Computer Software Documentation).

3)   You will permit Orasi to audit Your use of the Licensed Product and report such use to HP upon request in connection with an audit of Orasi by HP.

4)   This Agreement supersedes any HP license agreement and HP additional license authorizations document for the LoadRunner software that may be included in the program files of the Orasi CloudPerform.

5)   Access to the Service from territories where it restricted by United States or other national laws or regulations, is prohibited. If You choose to access the Service from outside the United States, You will do so on your own initiative and are responsible for compliance with all applicable laws or regulations. You agree to comply with all export and re-export restrictions and regulations of the U.S. Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of this Service. You agree not to in violation of any laws or Regulations, transfer, or authorize the transfer, of the Orasi CloudPerform to a prohibited country or otherwise in violation of any laws or regulations, or allow the Orasi CloudPerform to be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders or Entity List of proliferation concern, or the U.S. State Department's Debarred Parties List. By using the Orasi CloudPerform, You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

6)   Orasi reserves the right, in its sole discretion, to terminate your access to Orasi CloudPerform and the related services or any portion thereof at any time, without notice.

 

7)   If any part of these Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms and Conditions shall continue in effect.

 

 

8)   A printed version of these Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 


 



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