End User License Agreement
DATA STORAGE GROUP, INC. (“Company”)
END USER LICENSE AGREEMENT (“AGREEMENT”)
READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE, anD ANY ACCOMPANYING OR RELATED DOCUMENTATION (COLLECTIVELY, THE "software") THAT IS PROVIDED TO YOU AS A STAND-ALONE APPLICATION, OR PART OF A COMPANY STORAGE AppLIANCE, AND ANY ACCOMPANYING OR RELATED SERVICES, INCLUDING SUPPORT AND MAINTENANCE (COLLECTIVELY, THE "SERVICES"). USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS OF THIS AGREEMENT.
"YOU," "YOUR," "YOURSELF", "USER," "END USER" AND "CUSTOMER" REFER TO THE INDIVIDUAL OR LEGAL ENTITY USING THE SOFTWARE.
1. USE OF SOFTWARE. Subject to the terms and conditions of this Agreement, the Company grants You a nonexclusive, nontransferable, limited and revocable right for You to use the Software which You have purchased from a Company authorized reseller ("Reseller") or which the Reseller is providing You as part of the charge for the Services or Application. You agree to use the Software, in a manner that is consistent with their intended purposes. From time to time, the Company may provide new releases, revisions, features or enhancements to the Software and/or certain third party software (all of which shall become part of the "Software"), either free of charge or for an additional fee, and will be available under the terms of this Agreement (or additional terms and conditions) by download and/or otherwise delivered by other install methods only to the extent that You hold a current subscription to the Services and pay any additional Software license fees, if any, or any additional subscription fees.
2. RESTRICTIONS AND OTHER INFORMATION CONCERNING YOUR USE OF THE SOFTWARE.
(a) Maintenance of Copyright Notices. You must not remove, obscure or alter any copyright notices or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software.
(b) Restrictions on Use. You may not use the Software in order to transmit, distribute or store material (i) in violation of any applicable laws, rules or regulations, including without limitation, export, intellectual property, obscenity, defamation or encryption rules, laws or regulations; (ii) that may damage, disable, overburden, impair or otherwise adversely affect the Software, or any servers or networks using or capable of accessing the Software, or other Company customers; or (iii) that is inappropriate, as reasonably determined by the Company; or (iv) that may expose the Company to criminal or civil liability.
(c) Ownership of Software. You acknowledge that the Company or third parties own all right, title and interest in and to the Software, including without limitation, all intellectual property rights related thereto. Except for the limited use and access license granted in this Agreement, all rights in and to the Software are reserved, no implied licenses are granted by the Company.
(d) Collection of Certain Information. The Software may collect certain non-personally identifiable information, including without limitation, statistics relating to how often backups are started and completed, or performance metrics relating to the Software and configuration settings. This information collected may be sent to the Company and may be used by the Company without restriction. The Company does not, at any time, examine, access Your data without Your permission unless legally required to do so.
(e) No Transfers or Modifications by You. You may not sell, assign, grant a security interest in or otherwise transfer any right in the Software, nor incorporate the Software (or any portion of thereof) into another product or service. You may not copy the Software. You may not (i) sublicense, lease, rent, loan, transfer, or distribute the Software or any derivative thereof, (ii) modify, adapt, translate, reverse-engineer or reverse-compile, decompile, disassemble, prepare derivative works of the Software or otherwise attempt to derive source code from the Software, or (iii) extract portions of the Software's files for use in other applications. You may not modify the Software or use the Software in any way not expressly authorized by this Agreement. You may not authorize or assist any third party to do any of the foregoing.
(g) Export Control. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into or to a national resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List, Entity List, or Table of Denial Orders. By using all or any portion of the Software You are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied You export privileges, (ii) You are not located in or under the control of a national or resident of any such country or on any such list, and (iii) You will not export or re-export all or any portion of the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls. You acknowledge that it is Your sole responsibility to comply with any and all government export and other applicable laws and that the Company has no further responsibility for such after the initial license to You.
(h) U.S. Government – Restricted Rights. The Software and any accompanying documentation are deemed to be “commercial computer Software” and “commercial computer Software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Software and accompanying documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3. NO WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" AND TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OR REPRESENTATIONS ARE HEREBY DISCLAIMED BY THE COMPANY AND ITS THIRD PARTY SOFTWARE VENDORS WITH RESPECT TO THE SOFTWARE, INCLUDING AS PART OF ANY COMPANY STORAGE APPLIANCE ON WHICH ANY PORTION OF THE SOFTWARE IS RESIDENT OR ANY COMPANY OPERATED FACILITY, SERVERS OR NETWORKS THAT MAY ACCESS SUCH SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SAME, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE OR OTHERWISE. IN ADDITION, NEITHER THE COMPANY NOR ANY THIRD PARTY SOFTWARE VENDOR MAKE ANY REPRESENTATION THAT THE OPERATION AND USE OF THE SOFTWARE, THE COMPANY STORAGE APPLIANCE ON WHICH ANY PORTION OF THE SOFTWARE IS RESIDENT OR ANY COMPANY OPERATED FACILITY, SERVERS OR NETWORKS THAT MAY ACCESS SUCH SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER THE COMPANY NOR ITS THIRD PARTY SOFTARE VENDORS WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
4. LIMITATION OF LIABILITY. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, AUTHORIZED RESELLERS OR THIRD PARTY SOFTWARE VENDORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THE THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR SERVICES OR TO RETRIEVE ANY BACKUP DATA, EVEN IF THE COMPANY, ITS AFFILIATES, AUTHORIZED RESELLERS OR THIRD PARTY SOFTWARE VENDORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY, ITS AFFILIATES, AUTHORIZED RESELLERS ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR SERVICES OR TO RETRIEVE ANY BACKUP DATA SHALL NOT EXCEED THE AMOUNT, IF ANY, YOU PAID FOR THE SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. IF THE SERVICES ARE PROVIDED WITHOUT CHARGE, THEN THE COMPANY, ITS AFFILIATES AND AUTHORIZED RESELLERS OR THIRD PARTY SOFTWARE VENDORS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. YOU FURTHER ACKNOWLEGE AND AGREE THAT THIRD PARTY SOFTWARE VENDORS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE.
5. INDEMNIFICATION. You agree to defend, indemnify and hold harmless the Company, its Affiliates, its Authorized Resellers, its Third Party Software Vendors, and its and their respective directors, officers, employees and agents from and against all claims, damages, losses, liabilities, and expenses, including without limitation, attorneys’ fees, arising out of Your use of the Software or Your violation of any term of this Agreement. The Company reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
6. MISCELLANEOUS. The Company may, in its sole discretion, transfer or assign all or any part of its rights in the Software and any agreement related thereto. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included, and, to the extent possible the invalid/unenforceable term will be interpreted mostly closely to reflect the stated intent of the parties and the court of competent jurisdiction will recognize such parties' intent. This Agreement and Your use of the Software shall be governed by and construed and interpreted in accordance with the laws of the State of Colorado, without regard to conflict of law provisions. The courts of Colorado have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including but not limited to a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement). The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply. Any action or proceeding by You to enforce an obligation, duty or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues. The terms relating to disclaimers of warranties, limitation of liability, indemnification, as well as these miscellaneous terms will survive any termination of Your use of and access to the Software. If You violate the terms of this Agreement, the Company will have the right to suspend or deny Your use of and access to the Software without notice to You, and in no event will the Company be liable to You or to any third party for any suspension or discontinuance of Your use of and access to the Software. You will be provided with an English language version of this Agreement and in the event of an inconsistency between any terms of the English language version of this Agreement and any translation into another language, the English language version of this Agreement, and its meaning, shall prevail.
A FILE LABELED “END USER LICENSE AGREEMENT” CONTAINING THESE TERMS AND CONDITIONS WILL BE WRITTEN AND STORED IN THE INSTALLATION FOLDER ON YOUR COMPUTER SYSTEM OR STORAGE APPLIANCE AND CAN BE ACCESSED, REVIEWED AND PRINTED BY YOU AT ANY TIME.