DATASTOR Shield™ Software Support and Maintenance Agreement
This document and any accompanying support certificate (the “Certificate”) or other proof of purchase is a legal agreement (the “Support Agreement”) between the end user (the “Licensee”) named on the face of the Certificate and Data Storage Group, Inc., d.b.a. DATASTOR™ and/or its subsidiaries (“DATASTOR”). This Support Agreement and the rights granted herein are only effective as to end users who have a valid license pursuant to a DATASTOR End User License Agreement (the “EULA”) for the underlying DATASTOR Shield™ software product(s) (the “Software”) for which this support will be provided. Please read this Support Agreement carefully.
IF LICENSEE DOES NOT AGREE TO THESE TERMS, THEN DATASTOR IS UNABLE TO PROVIDE SUPPORT FOR THE SOFTWARE TO LICENSEE. RECEIPT OF SUPPORT INDICATES LICENSEE’S AGREEMENT TO THESE TERMS.
Should you have any questions regarding this Support Agreement, or wish to contact DATASTOR, you may write to: Data Storage Group, Inc., Attention: Legal Services Department, 2030 Ionosphere St. Unit F, Longmont, CO, 80504.
Support Overview: DATASTOR has designed and built the DATASTOR Shield™ software product for protecting and recovering your business critical data. Our primary business focus is helping businesses securely backup, archive and replicate their data in the event that restoring their data becomes necessary because of a natural or man-made disaster. We take pride in our effort to provide the best software and support needed to protect your business data, within the terms of this Support Agreement. We also offer fully managed Hybrid Cloud Backup Services and Professional IT Services, for additional assistance with managing your backups, DR or other system issues that go beyond the scope of this Support Agreement.
DATASTOR offers software support and maintenance for each Software purchase (the “Support Contract”). The first year of support is included with the initial software purchase of DATASTOR Shield™ Enterprise software. The first three years of support is included with the initial software purchase of DATASTOR Shield™ non-Enterprise or Business Class ("Pro") software.
For Enterprise Software purchasers, the second (and any subsequent) year of support must be renewed on or before the support end date, which is the first anniversary date of the initial software purchase. Enterprise Support Contracts may be purchased in one year increments. In order to avoid interruptions in technical support, and additional fees, the Software support and maintenance contract must be renewed before the support end date.
Any non-Enterprise or Business Class (“Pro”) software purchasers may purchase Software support and maintenance services to extend their service three additional years. The three year term license extension must be purchased before the initial term expires.
The support end date for additional remote computer deployments on the same Archive Manager will be co-termed with the original end date for the original Software purchase, so that the support end date for all computers managed by the same Archive Manager server is the same.
Monthly Software Support Subscriptions are available for extending an active Enterprise Support Contract. To arrange for monthly recurring support subscriptions, DATASTOR requires the completion of a Recurring Payment Authorization Form. Monthly subscriptions may be canceled at any time with 30 days’ prior notice. This option is not available once a support contract has lapsed.
Support Services: Commencing on the support start date set forth on the face of the Certificate, DATASTOR will provide to Licensee the support service(s) listed on the face of the Certificate ("Support Services"), within the DATASTOR region in which the Software is licensed for use as indicated in the EULA. This Support Agreement applies only to software manufactured by or for DATASTOR that can be identified by the DATASTOR trademark, trade name, or DATASTOR logo affixed to them. Any support for third party hardware or software, including third-party software installed by DATASTOR or sold along with the Software, is provided by the hardware or software vendor, not DATASTOR. DATASTOR does not warrant or support any products that are not DATASTOR products. Support services are provided under the terms and conditions listed below, until the end date set forth on the face of the Certificate.
DATASTOR Responsibilities Under this Support Agreement Include:
Access to technical support provided by telephone Monday through Friday, from 8 a.m. to 5 p.m. (Mountain Time Zone) during the normal business week of, and in accordance with statutory holidays of the USA
Access to the DATASTOR technical support website
Delivery of Software hot-fixes, patches, updates and product enhancements
Software license reactivation
Researching and responding to questions relating to the Software
Responding to implementation questions relating to the Software
Analyzing and duplicating program defects with the Software
DATASTOR Responsibilities Under this Support Agreement Do Not Include:
Providing Software bug fixes and patches below maintained versions
Providing defect correction below maintained versions
Installing or maintaining any third party software
Providing programming assistance
Providing network administration or other IT services
DATASTOR offers fee-based Professional Consulting Services on an hourly pro rata basis for situations where Licensee requires assistance on issues not covered by this Support Agreement.
DATASTOR shall not be responsible for issues unrelated to the Software. This includes, without limitation, any network performance issues from the provider to Licensee’s location, any internal network performance issues within Licensee’s internal network, or any hardware or software issues on Licensee’s local network.
Conditions for Providing Support Services. DATASTOR obligation to provide Support Services is conditioned upon the following situations: (a) Licensee makes reasonable efforts to solve the problem after consulting with DATASTOR; (b) Licensee provides DATASTOR with sufficient information and resources to correct the problem via either telephone technical support or through the DATASTOR technical website, as well as access to the personnel, hardware, and any software involved in discovering the problem; (c) Licensee promptly installs all updates, bug fixes and patches; and (d) Licensee procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software.
Exclusions from Support Services. DATASTOR is not obligated to provide Support Services in the following situations: (a) the Software has been changed, modified, or damaged (except under the control of DATASTOR); (b) the problem is caused by Licensee's negligence, hardware malfunction or other causes beyond the reasonable control of DATASTOR; (c) the problem is traced to third party software not licensed through DATASTOR; (d) Licensee has not installed and implemented updates, bug fixes and patches so that the Software is a version supported by DATASTOR; or (e) Licensee has not paid fees when due.
Termination of Support Services. DATASTOR reserves the right to discontinue Support Services should DATASTOR, in its sole discretion, determine that continued support for the Software is no longer commercially practicable. DATASTOR will give Licensee at least three (3) months prior written notice of any such discontinuance of Support Services and will refund any Support Service fees Licensee may have prepaid with respect to the Software. DATASTOR shall have no obligation to support or maintain any version of the Software that is not the current version of the Software and operating system or the immediately preceding version of the Software for a period of six (6) months after it is first suspended.
Lapsed Support Agreement. In the event the Support Agreement has lapsed, the following terms and conditions will apply:
Reinstatement of Support Services is subject to DATASTOR discretionary approval.
The support anniversary end date remains, based on the original purchase date of the Software.
Sales orders for add-on Software licenses, which include support, will not be accepted.
In the event the Support Contract lapses more than 30 days, a 25% fee will apply to reinstate the Support Contract in addition to the annual Support Contract fee. For instance, if support ends on May 25th and is renewed on July 30th, the support dates will be from May 26th through May 25th of the following year.
In the event the Support Contract lapses more than 6 months, the 25% reinstatement fee will be incurred along with the annual Support Contract fee to the following year support end date. For instance, if support expired on March 30th 2015 and is renewed on Nov 30th 2015, then the 25% fee applies to the lapsed year of support plus the second year of support is added bring it to the March 30th, 2017 support end date. Support would be re-instated from Nov 30th 2015 to Mar 30th 2017.
In the event the Support Contract lapses more than 12 months, a software upgrade license may be purchased at 70% of the then current software license price.
Support Services Warranty. DATASTOR warrants, for a period of thirty (30) days from the date of performance of support services under this Support Agreement, that such support services will be performed in a manner consistent with generally accepted industry standards. For support services not performed as warranted in this provision, and provided Licensee has reported such non-conformance to DATASTOR within thirty (30) days of performance of such non-conforming support services, DATASTOR will, at its discretion, either correct any nonconforming support services or refund the relevant fees paid for the nonconforming support services. THIS IS LICENSEE'S EXCLUSIVE REMEDY AND DATASTOR’S SOLE LIABILITY ARISING IN CONNECTION WITH THE SUPPORT SERVICES WARRANTY DESCRIBED IN THIS SECTION.
Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL DATASTOR BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THE PROVISION OF SUPPORT SERVICE(S), EVEN IF THE PARTY, ITS RESELLERS, SUPPLIERS OR ITS AGENTS HAS BEEN TOLD SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL DATASTOR’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SUPPORT SERVICE(S). NOTHING IN THIS SUPPORT AGREEMENT SHALL EXCLUDE OR LIMIT DATASTOR’S LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
Integration. This Support Agreement, as supplemented by any relevant terms in the EULA not otherwise defined herein, constitutes the entire agreement between this parties pertaining to the subject matter hereof, and except as otherwise agreed upon in writing by the parties, supersedes any and all prior written or oral agreement with respect to such subject matter.