EULA - End User License Agreement
END USER LICENSE AGREEMENT
IMPORTANT! READ CAREFULLY.
THE FOLLOWING IS A LEGALLY BINDING AGREEMENT.
BEFORE YOU CHOOSE THE "I ACCEPT" BUTTON AT THE BOTTOM OF THIS WINDOW, CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY CLICKING ON THE "I ACCEPT" BUTTON YOU WARRANT AND REPRESENT THAT:
· YOU ARE OVER THE AGE OF 18;
· YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE WAS PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT;
· ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE WAS PURCHASED, AS APPLICABLE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF ANY OF THE FOREGOING WARRANTIES AND REPRESENTATIONS DO NOT APPLY TO YOU OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU ARE LEGALLY BOUND TO CHOOSE THE "I DECLINE” BUTTON. IN SUCH CASE, YOU MAY NOT RECEIVE, INSTALL OR USE THE SOFTWARE. ANY USE OF THE SOFTWARE OTHER THAN PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IS A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS.
IF YOU CHOOSE THE “I DECLINE” BUTTON, YOU MAY RETURN THE SOFTWARE TO THE AUTHORIZED RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A FULL REFUND, PROVIDED THAT YOU DO SO WITHIN THIRTY (30) DAYS FROM THE DATE OF YOUR PURCHASE AND THE SOFTWARE IS ACCOMPANIED BY ALL ORIGINAL DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE.
1. Preamble. ALTARO BACKUP FS is a SOFTWARE PRODUCT protected by copyright and intellectual property laws and treaties. This SOFTWARE PRODUCT and the accompanying documentation is licensed, not sold, to the End User pursuant to the terms and conditions of this End User License Agreement (“EULA”). “Licensor” is Altaro Ltd., a limited liability company organized and existing under the laws of Malta, located at 189/1, The Strand, Gzira, GZR 1024, Malta.
2. Grant of Rights. Subject to your payment of the applicable license fee and full compliance with this Agreement, Licensor grants to you the following:
(a) a perpetual, non-exclusive, non-transferable license to install and use a single copy of the executable code version of the software which this EULA accompanies, including any modifications, corrections or updates supplied to you by Licensor upon installation or under a Maintenance/Support program (“Licensed Software”) and all associated user manuals, release notes, installation notes, and other materials delivered with the Licensed Software in printed or electronic formats (“Documentation”) on a single workstation or server, without restriction as to the number of individual “stand alone” backup drives (e.g., tape drives, optical drives, etc.) connected to said single workstation or server.
(b) the right to make a single copy of the Licensed Software and Documentation for archival purposes, provided you reproduce all proprietary matter including without limitation copyright notices, warnings, labels, trademarks and trade names (“Proprietary Matter”) contained in the original copy of the Licensed Software and Documentation.
(a) The Licensed Software may include software components licensed to Licensor by third parties that may provide you broader usage rights for those specific components. Such broader usage rights, however, shall in no event broaden the rights granted by Licensor to you under this EULA.
(b) You shall not do or permit others to do any of the following:
· copy the Licensed Software and Documentation except as provided in paragraph 2 above;
· modify, translate, rent, lease, copy, re-sell, transfer, assign, sub-license or distribute the Licensed Software and Documentation or any part thereof to any person or entity;
· reverse engineer, disassemble or decompile the Licensed Software (except you may decompile for the purposes of interoperability only to the extent permitted by and in strict compliance with applicable law);
· use the Licensed Software or Documentation in connection with a service bureau or similar activity whereby you operate or use the Licensed Software or Documentation for the benefit of a third party who has not purchased a copy of the Licensed Software;
· remove Proprietary Matter from the Licensed Software and Documentation or modify, alter or obscure Proprietary Matter thereon; or,
· create derivative works based on the Licensed Software and Documentation.
If you are a corporation or other business entity, you shall use your best efforts to prevent your employees, contractors, subcontractors and agents from engaging in any of the above. Any failure to comply with the above or any other term or condition contained in this EULA shall result in the automatic termination of this license and the reversion of the rights granted hereunder to Licensor.
(c) Although you own the media on which the Licensed Software and Documentation are recorded, Licensor and/or its suppliers retain all right, title and interest in and to (i) the Licensed Software and Documentation (including without limitation images, photographs, animations, video, audio, music, text and so-called “applets”), (ii) all copies, improvements, enhancements, modifications and derivative works of the Licensed Software or Documentation, and (iii) all patents, copyrights, trade secrets, trademarks and other intellectual property rights subsisting in the Licensed Software and Documentation and copies, improvements, enhancements, modifications and derivative works thereof. Your rights to use the Licensed Software and Documentation shall be limited to those expressly granted in paragraph 2 above. All rights not expressly granted to you are retained by Licensor and/or its suppliers.
(d) You hereby agree to and do indemnify, save and hold harmless Licensor, its agents, suppliers, distributors and authorized re-sellers from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees, legal expenses and court costs) arising out of or connected with any claim, demand or proceeding which relates in any way to your use of the Licensed Software and Documentation in a manner not explicitly authorized by his EULA.
4. Evaluation Licenses.
(a) Notwithstanding anything to the contrary contained in this EULA, if you acquired the Licensed Software and Documentation for purposes of evaluation, your rights to use the Licensed Software and Documentation shall be subject to the following limitations:
· your right to use and evaluate the Licensed Software and Documentation shall terminate thirty (30) days from the date of your initial installation of the Licensed Software (the “Evaluation License Period”);
· the Licensed Software and Documentation are furnished to you “as is” without warranty of any kind;
· the Licensed Software and Documentation may be used solely for non-commercial evaluation by you;
· the Licensed Software and Documentation are licensed to you without fee only for the Evaluation License Period;
· at no time shall you transfer the Licensed Software or Documentation to any third party; and,
· You agree to and do hereby indemnify, defend and hold harmless Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, damages and expenses (including reasonable attorneys' fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Licensed Software and Documentation for evaluation purposes, your negligent or wrongful acts, and/or your violation of any applicable laws.
(b) All terms and conditions of this EULA not specifically modified by subparagraph 4(a) above shall apply to Evaluation Licenses.
5. Limited Warranties.
(a) Licensor warrants that the Licensed Software as delivered by Licensor and when used in accordance with the Documentation shall substantially conform with the Documentation for a period of ninety (90) days from purchase and that the media upon which the Licensed Software is furnished to you shall be free from defects in material and workmanship under normal use during such ninety day period. Excluded from the foregoing warranty are defects resulting from accident, misuse, unauthorized repair, modification, enhancement or misapplication.
(b) For any Licensed Software that does not operate as warranted in subparagraph 5(a) above, Licensor shall, at its sole discretion, repair the Licensed Software, replace the Licensed Software with software of substantially the same functionality, or terminate the license and refund the relevant license fee paid for such non-compliant Licensed Software, provided that you return the Licensed Software to Licensor or its authorized reseller from whom you obtained it, together with the purchase receipt within the warranty period.
(c) Licensor shall not be obligated to provide any updates for the Licensed Software
(d) THIS PRODUCT IS PROVIDED TO YOU “AS IS.” LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFICIENCIES IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF USE OF THE LICENSED SOFTWARE OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED WARRANTY.
(a) THE WARRANTIES SET FORTH IN PARAGRAPH 5 ABOVE ARE YOUR ONLY WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF STATUTORY NON-INFRINGEMENT. NO THIRD PARTY, INCLUDING WITHOUT LIMITATION LICENSOR'S AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RE-SELLERS, IS AUTHORIZED TO MODIFY ANY OF THE ABOVE WARRANTIES ON BEHALF OF LICENSOR. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE SHALL MEET YOUR REQUIREMENTS OR THAT USE OF THE LICENSED SOFTWARE AND DOCUMENTATION SHALL BE UNINTERRUPTED OR ERROR-FREE.
(b) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE EXCLUSIONS CONTAINED IN SUBPARAGRAPH 6(A) ABOVE MAY NOT APPLY TO YOU. IN SUCH EVENT, ANY IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF PURCHASE OF THE LICENSED SOFTWARE OR TO THE MINIMUM PERIOD PRESCRIBED BY LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT ANY LIABILITY OF LICENSOR WHICH, BY LAW OR REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED. FOR WARRANTY ASSISTANCE, CONTACT LICENSOR OR THE AUTHORIZED RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.
7. Limitations on Liability. IN NO EVENT SHALL LICENSOR OR ITS AGENTS, SUPPLIERS, DISTRIBUTORS OR AUTHORIZED RESELLERS BE LIABLE TO YOU OR ANY PERSON FOR ANY COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF PRODUCTION, LOSS OF BUSINESS, LOSS OF BUSINESS INFORMATION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, WASTED OPPORTUNITY OR WASTED MANAGEMENT AND STAFF TIME, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING THAT OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THE INSTALLATION, USE, INABILITY TO USE OR NON-USE OF THE LICENSED SOFTWARE EVEN IF LICENSOR, ITS AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, THE LIABILITY OF LICENSOR, ITS AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RESELLERS SHALL BE LIMITED TO DIRECT DAMAGES WHICH, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, SHALL NOT EXCEED THE LESSER OF ONE HUNDRED ($100) DOLLARS OR THE AMOUNT OF THE FEE PAID FOR THE LICENSED SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Indemnification. You agree to and do hereby indemnify, defend and hold harmless Licensor and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers, distributors and authorized re-sellers from any and all claims, losses, damages and expenses (including reasonable attorneys' fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Licensed Software and Documentation, your negligent or wrongful acts, and/or your violation of any applicable laws.
9. Termination of Your Rights. Your rights to use and copy the Licensed Software and Documentation as specified in paragraph 2 above shall terminate immediately and without notice to you if you fail to comply with any of the provisions of this EULA. Upon such termination, you shall immediately discontinue the use of and destroy the Licensed Software and Documentation, including without limitation any master copies, archival copies and all copies or portions thereof. Within ten (10) days of such termination you shall certify in writing to Licensor that all such copies have been destroyed.
10. Compliance with Applicable Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this EULA.
11. Export Controls. You agree that the Licensed Software and Documentation will not be shipped, transferred or exported (i) into or to a national or resident of Cuba, Iraq, Libya, North Korea, Syria or any country to which the EU or UN has an embargo of goods in force; (ii) into any country or to any person with respect to which the national legislation of an EU Member State has an embargo of goods in force; (iii) to any individual or entity listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Licensed Software and Documentation, you represent that you are not located in or under the control of or a national or resident of any such country or on any such list and you take full and sole responsibility for such use.
12. Government Rights. The Licensed Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, and any use, modification, reproduction, release, performance, delay or disclosure of the Licensed Software and Documentation by any governmental entity shall be solely in accordance with the terms and conditions of this EULA.
13. Upgrades. If the Licensed Software is an upgrade from an earlier release or previously-released version, you are hereby authorized to use the upgrade only in accordance with this EULA. Consequently, any prior agreements with respect to earlier or previous versions of the Licensed Software shall be deemed null and void and superseded in all respects by this EULA.
14. Privacy. You acknowledge that Licensor collects certain limited information regarding the use you make of the features in the Licensed Software such as how many times you use the “restore” functionality and the size of your backup dataset. Licensor shall under no circumstances ever collect or examine the contents of any files you are backing up or restoring. The Licensed Software does not and shall not collect information which, when used collectively, may identify you personally. You hereby grant Licensor the right to collect and use the foregoing information.
15. Compliance. During the period this EULA remains in effect and for three years following the termination of your rights pursuant to paragraph 9, Licensor has the right to verify your compliance with this EULA on your premises during your normal business hours and in a manner that minimizes disruption to your business. Licensor may use an independent auditor for this purpose with your prior approval which you shall not unreasonably withhold.
16. Queries. If you have any queries regarding this EULA, email email@example.com with the word EULA as the subject line.
(a) Unless you have entered into a separate, written and signed agreement with Licensor for the supply of the Licensed Software, this EULA is the complete and exclusive statement of the agreement between you and Licensor with respect to the Licensed Software and Documentation and the subject matter covered by this EULA and supersedes any and all prior or contemporaneous communications, proposals, agreements, purchase orders or similar terms issued by you, whether oral or written. No modification, amendment, waiver, termination or discharge of this EULA or of any of the terms and conditions hereof shall be binding upon either you or Licensor unless confirmed by a written instrument signed by you and by a duly authorized officer of Licensor. No waiver by you or Licensor of any provision of this EULA or of any default hereunder shall affect your or Licensor's respective rights thereafter to enforce such provision or to exercise any right or remedy in the event of any other default, whether or not similar.
(b) This EULA is personal and may not be assigned or assumed (including by operation of law) without Licensor's prior written consent. A change of control shall constitute an assignment.
(c) If any provision of this EULA shall be held void, voidable, invalid or inoperative, no other provision of this EULA shall be affected as a result thereof and, accordingly, the remaining provisions of this EULA shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein.
(d) This EULA shall be governed by and construed in accordance with the laws of England exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods including any amendments thereto and without regard to principles of conflicts of law. Any and all actions, suits and proceedings arising out of or relating to this EULA shall be brought only in the courts located in London, England, and the parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and waive any objection that they may now or hereafter have with respect thereto.
PLEASE INDICATE YOUR ACCEPTANCE OR REFUSAL TO THE TERMS AND CONDITIONS OF THIS EULA BY CLICKING EITHER THE “I ACCEPT” OR THE “I DECLINE” BUTTON BELOW.