Before using the Configurator, carefully read all the terms and conditions of this Agreement as well as the general terms and conditions that govern use of the Ocean9 website, at https://www.ocean9.io/legal/terms-of-use (“Website TOU”), which are incorporated into this Agreement by reference. To the extent any terms of the Website TOU are inconsistent with this Agreement, the terms of this Agreement shall control.
By making use of the Configurator, you are consenting to be bound by and are becoming a party to the contract formed by this Agreement and also will be acknowledging that you have the authority to enter into this Agreement and bind yourself or the company for which you work, as applicable. If you do not agree to all of the terms of this Agreement, cease use of the Configurator and close this window.
The Configurator was developed by Ocean9, Inc. (“Ocean9”) to automate a series of manual calculations for sizing and pricing SAP HANA systems on AWS.
Subject to the terms and conditions of this Agreement, Ocean9 hereby grants User a limited non-exclusive, revocable, and non-transferable right to access and use the Configurator to estimate pricing and sizing of SAP HANA deployment on AWS. A User’s rights under this Agreement also includes the right to use any Configurator-generated data internally within a User’s business and to access, display, and print any Configurator-generated data as reasonably required solely for your internal business purposes.
Ocean9 understands that the Configurator may offer a valuable online tool to System Integrators or their customers. In addition to the rights granted to Users, Ocean9 grants System Integrators a limited non-exclusive, revocable, and non-transferable right to embed a link to the Configurator to any site, software application, or platform that a System Integrator owns or operates (“Platform”) for the limited purpose of making the Configurator or any Configurator-generated data available to customers or potential customers of a System Integrator for commercial gain, to the extent that the System Integrator provides Proper Attribution to Ocean9. “Proper Attribution” means that any Platform that includes a link to the Configurator shall prominently include the phrase “Configurator powered by Ocean9” next to the link such that a System Integrator’s customer would understand that the Configurator is an Ocean9 service; and any work product by a System Integrator that includes or incorporates data generated by or derived from data generated by the Configurator shall include a reference to the source of such data from Ocean9. Any access or use by a System Integrator that does not provide Proper Attribution shall result in an immediate ban of any use of the Configurator by the System Integrator and/or its customers, at Ocean9’s sole discretion.
Ocean9 may from time to time develop and make available, new releases of the Configurator containing new features or functionality or modifications, bug fixes or enhancements to the Configurator’s existing capabilities. This Agreement and all of the terms hereof apply to all such releases even if Ocean9 does not separately require User to provide re-confirmation of its assent. Ocean9 is under no obligation whatsoever to provide User with new releases or any other support, maintenance, training, consulting or customization services related to the Configurator.
User understands that all aspects of the Configurator, including without limitation, programs and methods of processing, and any and all improvements, enhancements, revisions, and modifications thereto shall remain the sole and exclusive property of Ocean9. It is understood that no title to or ownership of the Configurator, documentation or any part thereof, is hereby transferred to User. User understands and agrees that any and all copyrights, patents, trade secrets, and other intellectual property or proprietary rights in the Configurator, documentation and any improvements, enhancements, revisions, and modifications are and shall remain the property of Ocean9, and nothing in this Agreement should be construed as transferring any aspect of such rights to User or any third party.
The Configurator is intended to be used solely as a resource for Users to estimate sizing and pricing of SAP HANA on AWS. The calculations, pricing options and other data provided by the Configurator rely on publicly available information from AWS and SAP. While efforts have been made to ensure accuracy, Ocean9 does not warrant that the calculations, pricing options and other data provided by the Configurator are up to date or completely accurate. Ocean9 provides the Configurator to its Users as an Ocean9 service, and is not in any way affiliated with AWS or SAP. Ocean9 is not involved in any transaction between User and AWS or User and SAP. Ocean9 is not a party to, third-party beneficiary of, or guarantor of performance with respect to any agreement between User and AWS or User and SAP. Specifically, Ocean9 does not control the availability of products or services offered by AWS or SAP, the terms on which such products or services are offered (including pricing), or guarantee any of the estimated pricing options that are generated by the Configurator. Because Ocean9 does not and cannot be involved in User-to-AWS or User-to-SAP transactions, in the event that User has a dispute with AWS or SAP regarding AWS or SAP products or services, User hereby releases Ocean9 (and its agents and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
The availability of the Configurator depends on many factors, including User's connection to the Internet, the availability of the Internet and equipment that, by its nature, is not fault tolerant. While Ocean9 shall take all reasonable efforts to ensure availability, Ocean9 does not warrant any specific levels of performance or availability, and User agrees to assume any and all risk associated with its use of the Configurator.
This Agreement becomes effective upon acceptance of this Agreement and continues for so long as this Agreement is not terminated and User’s rights are not revoked due to misconduct or unauthorized use. Ocean9 may terminate this Agreement and revoke User’s rights immediately if User or its employees, agents, and subcontractors breach any of the provisions of this Agreement or otherwise infringe on Ocean9’s intellectual property rights. Ocean9 may also terminate User's use of the Configurator at any time in its sole discretion. Upon any termination or expiration, User and all of User’s employees, agents, and subcontractors shall immediately discontinue all use of the Configurator though User may retain and continue use of previously generated Configurator-generated data in accordance with the terms herein. Termination is in addition to all other legal or equitable remedies available to Ocean9 hereunder.
OCEAN9 MAKES NO WARRANTIES REGARDING THE WEB SITE THROUGH WHICH THE CONFIGURATOR IS ACCESSED NOR REGARDING THE CONFIGURATOR, AND HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE CONFIGURATOR, CONFIGURATOR-GENERATED DATA, CONTENT, AND WEB SITE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE STATUTORY WARRANTY AGAINST NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY OCEAN9, OR ITS EMPLOYEES OR REPRESENTATIVES, WILL CREATE A WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE. OCEAN9 SHALL NOT BE LIABLE FOR FAILURES THAT ARE CAUSED BY USER, AWS, SAP, OR ANY THIRD PARTY, NOR FOR FAILURES CAUSED BY BUGS, OR USER OR THIRD PARTY HARDWARE OR SOFTWARE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL OCEAN9 OR ITS AFFILIATES, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, TRADE SECRETS, GOODWILL, OR ANTICIPATED OR LOST PROFITS) THAT RESULT FROM USER'S USE OF OR INABILITY TO USE THE CONFIGURATOR. OCEAN9 IS NOT LIABLE FOR THE COST OR PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, OR DATA. USER AGREES TO USE THE CONFIGURATOR AT ITS OWN RISK. USER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY WHETHER OR NOT OCEAN9 IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement does not create any relationship between the parties of principal and agent, partners, joint ventures, legal representative, or employer and employee, whether between the parties or between a party and the other party's employees, for any purpose whatsoever. User has no right to create any obligation or responsibility, express or implied, on behalf of or in the name of Ocean9, or to bind Ocean9 in any manner or concerning any matter.
User shall not assign this Agreement or any of its rights or obligations without the prior written consent of Ocean9, and any such attempted assignment will be void. Subject to the above, this Agreement will be binding upon the parties' respective successors and permitted assigns.
Ocean9 will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by Internet outages, earthquakes, communications outages, fire, flood, war, an act of God, or the occurrence of any other unforeseen contingency beyond the reasonable control of Ocean9.
No Severability or Unintentional Waiver. This Agreement constitutes the entire agreement between User and Ocean9 with respect to the Configurator. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Waiver by Ocean9 of a breach of any provision of this Agreement or the failure by Ocean9 to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
User agree that this agreement will be construed, interpreted, and applied in accordance with the laws of the United States and the State of California, without giving effect to the conflict of laws thereof. The court and authorities of the State of California in Santa Clara County and the United States District Court for the Northern District of California will have the sole jurisdiction and venue (including personal jurisdiction) over all controversies which may arise with respect to this Agreement, and User hereby waives any other jurisdiction and venue to which User may be entitled by virtue of domicile or otherwise.
If User does not materially comply with any of the terms of this Agreement, then User shall be obligated to pay to Ocean9 all damages, statutory or otherwise, resulting from such non-compliance, as well as Ocean9's reasonable attorney’s fees and costs associated with Ocean9 enforcing any of its rights in connection with such non-compliance.
Sections 7, 9, 10, and 12-21 shall survive the termination or expiration of this Agreement.