Below are various Terms and Conditions CamTech is bound by from various vendors that we utilize to
perform work for our clients. Please review these thoroughly. These terms change from time to time as
well as the vendors that we utilize to perform services. Please check this web site often for changes –
www.camtechmsp.com/terms-conditions/
Client Responsibility
Client shall cooperate with CamTech in any way necessary for CamTech to carry out the services
mentioned herein, including, but not limited to, providing access to client’s network and facilities.
Restrictions to Hire
Client agrees not to solicit, with the intent to hire, any CamTech staff or sub-contractors for employment
at any time and for a period of twelve (12) months following last work performed for client. In the event
client hires any CamTech employee or sub-contractor as a result of clients’s direct solicitation thereof,
client agrees to reimburse CamTech an amount equivalent to six (6) months of the employee/subcontractor’s
compensation for business interruption. Notwithstanding anything to the contrary, nothing
herein shall prohibit client from hiring any CamTech staff member or sub-contractor who applies to client
or otherwise initiates employment with client.
Return of Confidential Information
All Confidential Information shall remain the property of the disclosing party. Upon the disclosing party’s
request, or upon termination or expiration of this Agreement, the receiving party shall, at the disclosing
party’s option and to the extent permitted by applicable law or court order promptly return to the
disclosing party or destroy the Confidential Information of the disclosing party and upon request certify in
writing that all such Confidential has been destroyed; any Confidential Information not destroyed or
returned shall remain subject to the confidentiality restrictions set forth herein.
Confidential Information. “Confidential Information” means all information (regardless of whether in oral
or in a tangible medium and regardless of whether marked as confidential) of the disclosing party or any of
its affiliates (collectively, “Discloser”) that is not readily available to the public, including, but not limited
to: strategic plans; organization charts; acquisition and divestiture information; financial reports and related
information; research and development information; information regarding proprietary processes,
inventions and prototypes; product specifications; cost and price planning data; customer and vendor
databases; and clinical or other scientific tests results. CamTech may also disclose confidential information
of a third party, and such confidential information will be included within the scope of CanTech’s
Confidential Information under this Agreement (and must be treated accordingly by Company).
Irreparable Harm
Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a
manner inconsistent with the provisions of this Agreement may cause the non-disclosing party
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irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties
agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain
such use or disclosure without the necessity of proving actual harm or posting bond.
Independent Contractor
CamTech is an independent contractor. Neither CamTech nor Client are, or shall be deemed for any
purpose to be, employees or agents of the other and neither party shall have the power or authority to bind
the other party to any contract or obligation. Also, CamTech is responsible for providing, at CamTech’s
expense, unemployment insurance, medical insurance, workers comp, and/or worker’s compensation
insurance for CamTech’s employees and agents in appropriate amounts taking into account all potential
risks and exposures.
Dispute Resolution
Both parties agree that any controversy or claim arising out of or relating to this Agreement or to its
breach shall be settled by submitting the controversy or claim to the Tulsa County District Court to be
heard by a judge. In any dispute arising out of this Agreement, the prevailing party shall be entitled to
receive its attorney’s fees and costs incurred in connection with any action or proceeding hereunder.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of
Oklahoma, without regard to conflict of laws principles. Client hereby irrevocably consents to the
jurisdiction of Tulsa County of the State of Oklahoma.
Force Majeure
CamTech shall not be responsible for its failure to perform under this Agreement when its failure results
from any of the following causes: acts of God, pandemics, terrorist or other public enemies, civil or
military authority, insurrection or riot, fire, flood, explosion, earthquake or serious accident, failure of
hardware owned by client, or any cause beyond its reasonable control.
Private Cloud Host Management
Private Cloud host servers provided by CamTech are managed to the extent detailed below. Every Private
Cloud host server includes basic managed services including initial operating system / hypervisor
installation, hardware maintenance when required, basic monitoring, basic troubleshooting support for the
operating system / hypervisor, patch management for the host (pursuant to an established maintenance
schedule), and remote reboot services. a. Operating system / hypervisor setup and testing – CamTech will
perform a standard operating system /hypervisor installation and test the configuration of that installation.
b. Hardware maintenance – CamTech will provide hardware replacements for failed components on
CamTech provided hardware at no charge under the provisions of the applicable policies of the hardware
vendor. Any operating system / hypervisor reinstallation required due to failed hardware replacement will
be performed at no charge. Please see the section entitled “Backup and data recovery” for information on
data recovery after any required system reinstallation. c. Basic monitoring – Private Cloud host servers
will be monitored by CamTech monitoring systems. By default, a server will be queried to determine
up/down status via ICMP ping or other method. Notifications of failed tests may optionally be sent to an
E-mail address provided by the Client. In addition, notifications will be dispatched to CamTech support
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personnel in the event of a service failure. d. Backup and data recovery – CamTech recommends the
nightly backup of all critical Client data. If backups are performed by CamTech as part of this Service
Agreement and a restore is necessary, CamTech will make commercially reasonable efforts to restore
Client data from the latest full backup but does not warrant that any such restoration will be successful,
complete or accurate. Client assumes all liability associated with backup and data recovery and
acknowledges that it is not relying on CamTech for providing redundancy. As with all data processes,
CamTech cannot, and does not, guarantee or warrant the viability or availability of any backup performed
via automated or manual processes.
Non-Private cloud clients / NAS clients / Barracuda clients / Any backups provided by CamTech
Backup and data recovery – CamTech recommends the nightly backup of all critical Customer data. If
backups are performed by CamTech and a restore is necessary, CamTech will make commercially
reasonable efforts to restore Client data from the latest full backup but does not warrant that any such
restoration will be successful, complete or accurate. Client assumes all liability associated with backup
and data recovery and acknowledges that it is not relying on CamTech for providing redundancy. As with
all data processes, CamTech cannot guarantee or warrant the viability or availability of any backup
performed via automated or manual processes.
Security
(a) The Internet is not a secure network. Confidential or sensitive information should not be
transmitted over the Internet unprotected. CamTech is not responsible for loss or theft of
information transmitted over the Internet. CamTech encourages Customer to employ VPN, SSL,
SSH, or other data encryption technologies when conducting business over the Internet.
(b) CamTech will employ reasonable security measures on CamTech devices, including but not limited to
routers, switches, servers and the like, including any necessary security patches, IP access
lists, and associated services. CamTech will not be responsible for security on Customer
Provided Equipment or equipment rented to Customer by CamTech. If at any time CamTech determines
that security measures, including, without limitation, patches, are necessary to protect the integrity of
the CamTech Service, CamTech may implement such security measures without communicating in
advance with the Customer and without liability to Customer. CamTech will use reasonable
commercial efforts to inform Customer of such security measures.
(c) CamTech makes no warranties as to the effectiveness of inbound or outbound email scanning /
security and accepts no liability should Customer devices become infected. Customer is responsible for
employing industry standard anti-malware and intrusion prevention software on Customer devices.
(d) CamTech provides reasonable physical security measures for CamTech data center facilities, including
electronic security measures.
(f) Depending upon what industry Customer is operating within or what type of data Customer processes
or handles (e.g., medical or financial), there may be various security and related laws, regulations and
standards with which Customer is obligated to comply, including,
without limitation, HIPAA (Health Insurance Portability & Accountability Act),
SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information
Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data
Security Standard) (collectively, “Compliance Standards”). While CamTech may provide certain
CamTech Services designed to assist Customer with compliance with certain Compliance
Standards, actual compliance with Compliance Standards is solely Customer’s
responsibility and CamTech is not responsible for ensuring that Customer’s systems operating in
conjunction with the CamTech Services or CamTech equipment are compliant with the Compliance
Standards. Additionally, the Compliance Standards include many features that are out of
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CamTech’s control including, without limitation, Customer’s network and business processes.
ACCORDINGLY, CamTech DISCLAIMS ANY AND ALL WARRANTIES AND
REPRESENTATIONS THAT THE CamTech SERVICES, EQUIPMENT, SYSTEMS, NETWORK
OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND CamTech
DOES NOT REPRESENT THAT CamTech WILL UNDERTAKE ANY EFFORTS TO ACHIEVE
SUCH COMPLIANCE IN THE FUTURE. [CamTech will use its reasonable commercial efforts to
cooperate with Customer in Customer’s efforts to meet its obligations under the
Compliance Standards, but without any further obligation.] Determinations of CamTech
compliance or verification of CamTech compliance with any applicable rule, law, or standard
requires a separate agreement.
(g) Customer is responsible for compliance, compliance costs and legal costs associated with
unauthorized access, breaches, suspected or detected security compromises related to
this Agreement, including without limitation, notification to regulators, consumers,
consumer credit card companies, media, and law enforcement.
(h) Customer is responsible for notifying CamTech if Customer is a “covered entity” or “business
associate” of a covered entity under HIPAA or HITECH. Customer may not use a CamTech
Service to create, receive, maintain, or transmit protected health information on behalf of
itself or any covered entity unless and until Customer has notified CamTech and the parties have
entered into a business associate agreement. Customer is responsible for notifying CamTech if
Customer intends to process any cardholder data as that term is defined in the PCI-DSS
or is required to be PCI-DSS-compliant or to meet any other Compliance Standards related
to the use or processing of cardholder data. Customer may not use a CamTech Service to create,
receive, maintain, or transmit cardholder data on behalf of itself or any other person unless
and until Customer has notified CamTech and the parties have entered into a separate agreement
regarding such Compliance Standards.
(i) Customer represents and warrants that Customer is not a resident of any country or
affiliated with any organization prohibited to do business within the United States.
(j) Customer further represents and warrants that Customer will not export, re-export, transfer,
or make available, whether directly or indirectly, any regulated item or information to
anyone outside the U.S. in connection with this Agreement without first complying with all
export control laws and regulations that may be imposed by the U.S. government and any
country or organization of nations within whose jurisdiction Customer operates or does
business.
(k) Without limiting the foregoing, Customer agrees to comply with all applicable U.S. and non-
U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import,
embargo and trade sanctions, intellectual property, including copyright, content, sales,
mail-order, commerce, and e-commerce laws and regulations. Customer shall be
responsible for determining what laws or regulations are applicable to Customer’s use of
the CamTech Services. Customer shall, upon the request of CamTech, provide CamTech assurance of
Customer’s compliance with those laws.
(l) CamTech is headquartered in the United States and currently our services are only intended for
individuals located in the United States. If you are located outside of the United States, be
advised that any information you provide to CamTech will be transferred to and stored in the
United States and that, by submitting information to CamTech, you explicitly authorize its transfer
and storage within the United States. We will protect the privacy and security of personal
information according to CamTech policies. If Customer is providing information that is subject
other security and privacy laws that require specific measures by CamTech, Customer will notify
CamTech, and Customer will be responsible for obtaining any necessary separate agreements.
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Disclaimers; Limitation of Liability
(A) Camtech does not warrant that the Camtech services or technical services will be free of errors, be
uninterrupted, or will meet customer’s requirements. The Camtech services and technical services are
provided on an “as is” basis and CAMTECH EXPRESSLY DISCLAIMS ALL
WARRANTIES, CONDITIONS, AND INDEMNITIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTIABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT
OR ANY OTHER WARRANTY ARISING
FROM THE COURSE OF PERFORMANCE OR COURSE OF
DEALING.
Customer understands and agrees that Camtech will not be liable for any temporary delay, outage, or
interruption of the Camtech services, or the unauthorized access (“hacking”) by any third party into
Camtech’s servers or systems, and customer has not entered into this agreement in reliance upon any
warranty or representation except those specifically set forth herein.(b) to the extent permitted by law,
Camtech disclaims for its vendors all warranties and any liability to customer for any damages, whether
direct, indirect, or consequential, arising from the Camtech services.(c) unless otherwise provided under a
service agreement, it is solely customer’s duty and responsibility to backup customer’s files and data.
Under no circumstances will Camtech be liable to customer or to any party claiming by or through
customer for damages of any kind under any legal theory for loss of customer files and/or data. (d)
Camtech is not liable for: delays in installation or restoration of the Camtech service hereunder; mistakes,
accidents, omissions, interruptions, errors or defects in the ordering, processing, provisioning, or
transmission of the Camtech service; loss or damage occasioned by acts of god, fire, elements, labor
disputes, shortages, utility curtailments, power failures, explosions, cable cut and other causes beyond
Camtech’s reasonable control; indirect, special, incidental, or consequential damages (including but not
limited to lost profits or revenues, any loss of data, loss of use, or interruption of business); punitive
damages arising from a breach of this agreement, and to the extent allowed by law, for injury to or death
of any person and for damage to or loss of any property arising out of or attributable to its operations and
performance under this agreement. Camtech’s liability for any and all causes and claims whether based in
contract, warranty, negligence or otherwise shall in no event exceed the greater of 1) an amount
equivalent to the proportionate charge by Camtech to customer for the period of service affected (not to
exceed 3 months), or 2) if applicable, the replacement value of any customer provided equipment which is
lost or damaged as a result of Camtech’s gross negligence or willful misconduct in providing Camtech
services or performing technical services. Customer acknowledges that these limitations are an essential
element of this agreement and without such limitations Camtech would not enter into this agreement.
Indemnification
(a) Customer shall indemnify, defend and hold harmless CamTech, its affiliates and their respective
directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”)
from and against any and all claims, actions, proceedings, damages, costs, expenses and
liabilities, including reasonable attorney’s fees and disbursements, arising from or related
to Customer’s use of any CamTech Service, Technical Services or the performance of its
obligations and duties under this Agreement except to the extent those damages, costs,
expenses, and liabilities arise from the negligence or willful misconduct of CamTech. CamTech shall
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promptly notify Customer in writing of any such suit or claim. (b) In addition to and not in limitation of
the Customer’s obligations under subparagraph (a)above, Customer shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all claims, actions, proceedings, damages,
costs, expenses and liabilities, including reasonable attorney’s fees and disbursements, incurred or likely
to be incurred by any Indemnified Party arising from or related to Customer’s failure to comply
with the terms of any third party software license or usage guidelines.
Altaro –
This License Agreement (“License”) is a legal agreement between you (End-
User or you) and HORNETSECURITY LIMITED, a limited liability company
organized and existing under the laws of Malta, located at Hornetsecurity
Limited, Block LS3 (Digital Hub), Level 1, Malta Life Sciences Park, San Gwann
Industrial Estate, San Gwann, SGN3000, Malta
(Hornetsecurity, Licensor, us or we). These terms shall regulate the use of
Hornetsecurity’s product and software solution that are listed in the relative
order form, or otherwise accompany this EULA (“the Licensed Software”), and
our respective rights and obligations.
BEFORE YOU SELECT THE “I ACCEPT” BUTTON AT THE BOTTOM OF THIS
WINDOW, CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY
CLICKING ON THE “I ACCEPT” BUTTON AND/OR DOWNLOADING OR
INSTALLING THE LICENSED SOFTWARE YOU WARRANT AND REPRESENT
THAT:
YOU ARE OVER THE AGE OF 18, YOU ARE OF THE LEGAL AGE REQUIRED
IN YOUR STATE, PROVINCE, JURISDICTION OR RESIDENCE AND YOU ARE
LEGALLY CAPABLE OF ENTERING INTO THIS AGREEMENT;
YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR
THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE IS BEING
PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT;
ON BEHALF OF YOURSELF AND/OR AS AN AUTHORISED
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;
YOU ARE A BUSINESS USER AND THAT YOU ARE ACTING IN A BUSINESS
OR PROFESSIONAL CAPACITY. YOU ARE NOT ABLE TO USE OUR
LICENSED SOFTWARE IF YOU ARE DEEMED TO BE A CONSUMER IN
TERMS OF CONSUMER LAWS.
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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 LICENSED SOFTWARE. ANY USE OF THE LICENSED
SOFTWARE OTHER THAN PURSUANT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT IS A VIOLATION OF COPYRIGHT LAWS AND CONVENTIONS.
IF YOU QUALIFY AS A CONSUMER FOR THE PURPOSES OF THE CONSUMER
AFFAIRS ACT (CHAPTER 378 OF THE LAWS OF MALTA), YOU ACKNOWLEDGE
THAT UPON DOWNLOADING THE LICENSED SOFTWARE ONTO YOUR CHOSEN
MEDIUM YOU RELINQUISH YOUR RIGHT TO WITHDRAW FROM THE CONTRACT
ACCORDING TO LAW. BY CLICKING THE “I AGREE” BUTTON BELOW YOU ARE
ACCEPTING THIS LIMITATION TO YOUR RIGHT TO WITHDRAW FROM THE
CONTRACT UPON DOWNLOADING THE LICENSED SOFTWARE. IF YOU DO NOT
DOWNLOAD THE LICENSED SOFTWARE IMMEDIATELY, YOUR RIGHT TO
FREELY WITHDRAW FROM THIS AGREEMENT IS LIMITED TO FOURTEEN (14)
DAYS FROM CLICKING THE “I ACCEPT” BUTTON BELOW.
IF YOU CHOOSE THE “I DECLINE” BUTTON, OR IF YOU ARE A CONSUMER AND
YOU WITHDRAW FROM THIS AGREEMENT AS EXPRESSLY AUTHORISED AS PER
THE ABOVE, YOU MAY RETURN THE LICENSED SOFTWARE TO THE
AUTHORISED RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A
FULL REFUND, OR CONTACT THE LICENSOR THROUGH ITS CUSTOMER CARE
PROCEDURE ON ITS WEBSITE, PROVIDED THAT YOU DO SO WITHIN THIRTY
(30) DAYS FROM THE DATE OF YOUR PURCHASE AND THE LICENSED
SOFTWARE IS ACCOMPANIED BY ALL ORIGINAL DOCUMENTATION,
PACKAGING MATERIALS AND PROOF OF PURCHASE.
OPERATING SYSTEM REQUIREMENTS: The Licensed Software will only operate
on hardware and systems that meet certain requirements as indicated and listed
on the Licensor’s website at https://www.altaro.com/support.php These
requirements may be changed from time to time. It is in your interest to ensure
that your operating system meets the published requirements at all times.
1. Preamble. The Licensed Software is proprietary to the Licensor and is
protected by copyright and intellectual property laws and treaties. This software
product and the accompanying documentation is licensed, not sold to you
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pursuant to the terms and conditions of the End User License Agreement
(“EULA”). The Licensor will remain the owner of the Licensed Software and
documentation at all times.
2. Grant of License Rights
2.1. Production License – Subject to your payment of the applicable license fee
and full compliance with this Agreement, the Licensor grants to you the following
rights:
(a) A non-exclusive and non-transferable license to install and use a single copy
of the executable code version of the Licensed Software, including any
modifications, corrections or updates supplied to you by Licensor upon
installation or under a Maintenance/Support program 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 to the number of individual “stand
alone” backup drives (e.g., tape drives, optical drives, etc.) connected to said
single workstation or server unless your purchased Production license expressly
stipulates that it provides you with additional features;
(b) The above right shall be perpetual, save for (i) termination as a result of your
breach of these terms and (ii) the case where you are licensed under a Service
Provider License Agreement (“SPLA”), where the duration of the right will be
limited to the subscription period or as may be further regulated under the SPLA
terms of the specified solution;
(c) The right to make a single copy of the Licensed Software and Documentation
for archival purposes, back-up or business continuity, provided you reproduce all
the original Licensed Software’s 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 and a notice that it will not be used for transfer, distribution or
sale.
2.2. Software Evaluation and Beta License
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(a) We may make the Licensed Software, a part or feature thereof available as a
pre-release or beta version (“Beta Version”). You expressly acknowledge that by
their nature, such Beta Versions are work-in-progress and as a result they may
contain bugs, cause systems to crash or result in data loss. You agree to stop
using such Beta Versions when we request you to do so.
(b) Notwithstanding anything to the contrary contained in this EULA, if you are
using a Beta or an Evaluation / Trial version of the Licensed Software and
Documentation, your rights to use the Licensed Software and Documentation
shall be subject to the following limitations:
i. your non-exclusive, non-transferable 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”) or as alternatively defined within the Beta or
Early Access program;
ii. the Licensed Software and Documentation are furnished to you “AS IS”
without warranty of any kind, including, but not limited to, implied
warranties of quality and fitness for a particular purpose;
iii. the Licensed Software and Documentation may be used solely for Non-
Commercial / Non-Production evaluation by you;
iv. the Licensed Software and Documentation are licensed to you without fee
only for the Evaluation License Period;
v. no rights of ownership, copyright or other intellectual property in the
Licensed Software are being transferred to you;
vi. at no time shall you transfer the Licensed Software or Documentation to
any third party; and,
vii. you agree to and do hereby indemnify, defend and hold harmless the
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.
(c) All terms and conditions of this EULA not specifically modified by clauses 2.2
(a) and 2.2 (b) above shall apply to Software licensed under an Evaluation or
Beta License.
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2.3 Free license
(a) On occasions, we may designate that a version of the Licensed Software is
provided for free (i.e. without payment of any license fee) (“Free Version”).
(b) The use of a Free Version is subject to any terms that are outlined in the
respective software description page or solution terms made available by the
Licensor.
(c) Without prejudice to the aforementioned, a Free Version can be used in your
own production environment in accordance with the terms and conditions of this
Agreement and notwithstanding anything to the contrary contained in this EULA,
a Free Version shall be subject to the following limitations:
i. the Free Version and Documentation are furnished to you “AS IS” without
warranty of any kind, including, but not limited to, implied warranties of
quality and fitness for a particular purpose;
ii. the Free Version and Documentation are licensed to you without fee;
iii. you may not use the Free Version to provide services to third parties,
integrate with third party software, or to process third party data. Free
license versions can be used without additional purchase.
iv. no rights of ownership, copyright or other intellectual property in the Free
Version are being transferred to you;
v. you are not entitled to support and maintenance or that Licensor provide
any assistance regarding Free Version;
vi. you agree to and do hereby indemnify, defend and hold harmless the
Licensor and its parent, subsidiary, or affiliate organizations, officers,
agents, suppliers, distributors and authorized re-sellers from any and all
claims, losses, any direct, actual or indirect 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 Free Version and Documentation,
your negligent or wrongful acts, and/or your violation of any applicable
laws.
(d) All terms and conditions of this EULA not specifically modified by clause 2.3
(a), (b) and (c) above shall apply to Free Versions.
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2.4 “Not for Resale” license
(a) We may also choose to make Licensed Software or certain features thereof
available for demonstration, test or internal use only purposes labelled as “Not
for Resale” (collectively “NFR Software”). The license granted under an NFR
License shall be for a term of one (1) year (the “Demonstration Period”) unless
otherwise altered by Licensor, limited specifically for demonstration, test or
internal use only purposes. Notwithstanding anything to the contrary contained
in this EULA, if you acquired the NFR Software and Documentation, your rights to
use the NFR Software and Documentation shall be subject to the following
limitations:
i. you agree not to use NFR Software for resale purposes or to offer the
solution for your customers;
ii. you may not use the NFR Software to provide services to third parties,
integrate with third party software, or to process third party data.
iii. no rights of ownership, copyright or other intellectual property in the NFR
Software are being transferred to you;
iv. you agree to and do hereby indemnify, defend and hold harmless the
Licensor and its parent, subsidiary, or affiliate organizations, officers,
agents, suppliers, distributors and authorized re-sellers from any and all
claims, losses, any direct, actual or indirect 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 NFR Licensed Software and
Documentation, 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 clause 2.4
(a) above shall apply to NFR Software.
3. Restrictions.
(a) The Licensed Software may include software components licensed to the
Licensor by third-parties, which may be subject to terms and conditions that are
different than those outlined herein. [If you would like to receive a full list of such
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components, please get in touch with Altaro (Clause 17)]. You shall be required
to comply with any and all such third-party terms that apply.
(b) Notwithstanding the terms and conditions of this EULA, all or any portion of
the Licensed Software which constituted non-proprietary software provided
under public licenses by third parties (“Freeware” or “Open Source”), is licensed
to you subject to the terms and conditions of the software license agreement
accompanying such Freeware or Open Source software whether in the form of a
discrete agreement, shrink wrap license or electronic license terms accepted at
the time of download. Use of the Freeware or Open Source software by you shall
be governed entirely by the terms and conditions of such license.
(c) You shall not do or permit others to do any of the following:
i. copy the Licensed Software and Documentation except as provided in
clause 2 above modify, translate, rent, lease, copy, re-sell, transfer, assign,
sub-license, distribute, merge, vary or modify the Licensed Software and
Documentation or any part thereof to any person or entity;
ii. make alterations to, or modifications of, the whole or any part of the
Licensed Software or permit the Licensed Software or any part of it to be
combined with, or become incorporated in, any other programs or
software solutions without a written approval from Us.;
iii. save where you are expressly authorised to do so under a SPLA and within
the limitations of such SPLA, 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;
iv. remove Proprietary Matter from the Licensed Software and
Documentation or modify, alter or obscure Proprietary Matter thereon;
v. to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or
make error corrections to the Licensed Software in whole or in part except
as permitted by law. Provided that where you require the aforementioned
information and/or code in order to achieve the interoperability of a
computer program independently created by yourself, you shall first
request the Licensor to provide such information (at the then applicable
commercial rates). Any information and/or code so obtained (whether
provided by the Licensor or independently procured) shall not:
1. be used for purposes other than to achieve the interoperability of
the computer program independently created by you;
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2. be given to other persons, except when necessary for the
interoperability of the independently created computer program;
3. be used for the development, production or marketing of a computer
program substantially similar in its expression to the original
program or for any other act which infringes copyright;
4. provide, or otherwise make available, the Licensed Software in any
form, in whole or in part (including but not limited to, program
listings, public sharing website, object and source program listings,
object code and source code) to any person other than your
employees without prior written consent from us;
5. use the Licensed Software via any communications network or by
means of remote access;
6. fail to comply with all applicable technology control or Export
Restrictions (Clause10)
(d) If you are a corporation or other business entity, you shall use your best
efforts to prevent your employees, customers, contractors, subcontractors and
agents from engaging in any of the above prohibited activities and to supervise
and control the use of the Licensed Software by the said persons and ensure that
the Licensed Software is used by such employees, customers, subcontractors and
agents in accordance with the terms of this License.
(e) Although you own the media on which the Licensed Software and
Documentation are recorded, the Licensor and/or its suppliers retain all rights,
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.
(f) Your rights to use the Licensed Software and Documentation shall be limited
to those expressly granted in clause 2 above. All rights not expressly granted to
you are retained by Licensor and/or its suppliers. You agree to refrain from any
action that would diminish such rights of the Licensor or would call such rights
into question. The rights granted herein are limited to the Licensor’s copyright in
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the Software and do not include any other patents or intellectual property rights
of the Licensor or third parties.
(g) You hereby agree to, and do, indemnify, save and hold harmless the Licensor,
its agents, suppliers, distributors and authorised resellers 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 authorised by this EULA.
(h) Any failure to comply within clause 3 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 the Licensor.
4. Limited Warranties.
(a) Subject to the limitations and exclusions of liability below, the Licensor
warrants that the Licensed Software as delivered by the Licensor and when used
in accordance with the Documentation shall substantially conform with the
functions described in the Documentation for a period of ninety (90) days from
initial Licensed Software purchase. Licensor does not warrant that the Licensed
Software will meet all of Your requirements or that the use of the Licensed
Software will be uninterrupted or error-free. The warranty shall not apply if the
Licensed Software fails to operate in accordance with the said warranty as a
result of use in breach of these terms, accident, misuse, unauthorised repair,
modification, enhancement, misapplication or failures that are caused by other
software or hardware products.
(b) For any Licensed Software that does not operate as warranted in clause 4(a)
above, the Licensor shall, at its sole discretion, promptly 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 the Licensor or its authorised reseller from whom you obtained it,
together with the purchase receipt within the warranty period. This obligation of
the Licensor is subject to your obligation to make available all information
requested and that may be necessary to help the Licensor to remedy the defect or
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fault, including sufficient information to enable the Licensor to recreate the
defect or fault.
(c) The Licensor shall not be obliged to provide any updates for the Licensed
Software, unless expressly agreed otherwise.
(d) You are to take all such measures as are reasonable to avoid and reduce
potential damages, such as by taking regular backups.
(e) Subject to clause 4(a) above, the software is provided to you “AS IS”. THE
LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR
ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS
CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE
WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE
OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES
WILL CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES
WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE,
APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE
SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS
SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE,
APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR AN AUTHORIZED
REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER EXPRESS OR
IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED WARRANTY.
(f) SAVE FOR AS PROVIDED IN clause 4 (b) ABOVE, SHOULD THE SOFTWARE
OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION.
(g) IF YOU ARE A CONSUMER AND THE ABOVE LIMITATIONS ON OUR
WARRANTIES ARE STATUTORILY NOT APPLICABLE IN FULL, THE RIGHTS
GRANTED TO YOU AT LAW BEYOND THAT WHICH IS WARRANTED BY US
ABOVE, SHALL BE INTERPRETED AS RESTRICTIVELY AS THE LAW ALLOWS
FOR.
5. Disclaimers.
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(a) THE WARRANTIES SET FORTH IN CLAUSE 4 ABOVE ARE YOUR ONLY
WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED. THE 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, THE LICENSOR’S AGENTS, SUPPLIERS, DISTRIBUTORS AND
AUTHORIZED RE-SELLERS, IS AUTHORISED TO MODIFY ANY OF THE ABOVE
WARRANTIES ON BEHALF OFTHE LICENSOR.
(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY
SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE
IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
(c) YOU FURTHER ACKNOWLEDGE THAT THE LICENSED SOFTWARE AND
SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR
ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR
INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE
LICENSED SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL
INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING
WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE
SUPPORT OR WEAPONS SYSTEMS.
(d) IF THE EXCLUSION OF ANY IMPLIED WARRANTIES IS RENDERED
INAPPLICABLE AS A RESULT OF STATUTORILY MANDATED RULES, OR AS
DEFINED BY SOME JURISDICTIONS, ANY SUCH IMPLIED WARRANTIES THAT
ARE PRESCRIBED BY LAW, SHALL BE LIMITED TO THE BARE MINIMUM
ALLOWED FOR BY THE SAME LAW AND SHALL NOT EXTEND IN DURATION
BEYOND 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 THE LICENSOR WHICH, BY LAW OR
REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED.
FOR WARRANTY ASSISTANCE, CONTACT THE LICENSOR OR THE AUTHORISED
RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.
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(e) The Licensed Software may be used or utilised by technology providers,
software providers or other third parties (each “the Service Provider”) to provide
you with certain services, such as managed backup (“Managed Services”).
We are not a party to the agreement or understanding that you have with the
Service Provider in relation to the provision of Managed Services.
The Service Provider shall be solely and fully responsible for providing you with
the Managed Services and complying with the terms and conditions relating
thereto, including any negligence, misconduct or breach.
You shall keep us free and fully indemnified from and against any claim that you
may have in relation to the Managed Services or to any breach of the Service
Provider’s obligations towards you or for anything done or omitted to be done by
the Service Provider in providing the Managed Services.
6. Limitations on Liability.
(a)The Licensor shall not be liable whether in contract, (including for negligence
or breach of statutory duty, howsoever arising), misrepresentation (whether
innocent or negligent), restitution or otherwise, for:
1. any loss (whether direct or indirect) of profits, savings, business, business
opportunities, revenue, turnover, reputation or goodwill;
2. any loss or corruption (whether direct or indirect) of data or information;
3. any loss (whether direct or indirect) of anticipated savings or wasted
expenditure (including management time); or
4. any indirect or consequential loss or liability.
(b) Unless excluded, the Licensor’s maximum aggregate liability for all loss,
damage and expense arising under this Agreement shall not exceed €10.
(c) The Licensor does not exclude or limits liability for:
1. personal injury or death;
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2. fraud or fraudulent misrepresentation;
3. any other liability to the extent that the same cannot be excluded or limited
by law.
7. Indemnification. You agree to and do hereby indemnify, defend and hold
harmless the Licensor and its parent, subsidiary, or affiliate organisations,
officers, agents, suppliers, distributors and authorised 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.
8. Termination of Your Rights. Your rights to use the Licensed Software and
Documentation as specified in clause 2 above shall terminate immediately and
without notice to you if you fail to comply with any of the provisions of this EULA
and/or any other agreement made in connection with this EULA, including a
SPLA. Upon termination for any reason all rights granted to you under this
License shall cease, you shall immediately discontinue the use of and destroy,
delete or remove, the Licensed Software and Documentation, including, without
limitation, any master copies, archival copies and all copies or portions thereof,
that are in your possession or were installed on computer peripherals by you.
Within ten (10) days of such termination you shall certify in writing to Licensor
that all such copies have been destroyed. You hereby also consent to the Licensor
and/or its agents, or employees, inspecting your computer peripherals under
your supervision, to ensure that the Licensed Software and Documentation has
been so deleted and/or destroyed.
9. Compliance with Applicable Law. Each party agrees to comply with all
applicable laws, rules and regulations in connection with its activities under this
EULA.
10. Export Restrictions. You agree to comply with all applicable export control
laws, including 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 and take full and sole
responsibility that i) you are not located in or under the control of or a national
or resident of any country or on any list which prohibit the exportation of the
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Licensed Software ii) to any person or entity who you know or have reason to
know will utilize the Licensed Software or portion therefore in the design,
development, production or use of nuclear, chemical or biological materials,
facilities or weapons or iii) to any person or entity who has been prohibited from
participating in U.S. by any federal agency of the U.S. government or EU export
restrictions.
11. Intellectual Property Rights. The Licensed Software and related
documentation are copyrighted works of authorship and are also protected
under applicable database laws. The Licensor retains ownership of the Licensed
Software, all subsequent copies of the Licensed Software and all intellectual
property rights subsisting therein, regardless of the form in which the copies may
exist. This EULA is not a sale of the original Licensed Software or any copies
thereof.
12. Maintenance and Support. If the Licensed Software includes and grants you
the right for maintenance and support as defined in clause 2, these services will
commence upon the date your order is processed and the license file is
generated. You will receive support for your Licensed Software and any updates,
enhancements or improvements that are included or defined in the Maintenance
Policies. Licensed Software updates cannot be applied to the Licensed Software
with an expired Software Maintenance Agreement. If the Licensed Software is an
upgrade from an earlier release or previously released version, you are hereby
authorised 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.
Updates and upgrades may be automatically downloaded and installed from time
to time. These updates may consist of bug fixes, new features, or new versions.
You expressly acknowledge and agree that updates or upgrades may not
necessarily include all features of the previous version. You agree to receive such
updates as part of the use of the Licensed Software. The terms of this EULA will
govern such updates or upgrades, unless such update or upgrade is accompanied
by a separate license in which case the terms of that license shall prevail.
13. Privacy. You acknowledge that the Licensor collects and process technical
information for business purposes and improving the Licensed Software, as part
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of any product maintenance and support services provided to you, and any other
technical information you provide to Licensor, provided that such information
does not identify You, as a specific individual.
(a) In the event that you provide personal information to Licensor as part of your
purchase and use of the Software, or for obtaining Maintenance, or we other
process personal data in our capacity as data processors (in terms of applicable
data protection legislation), your personal information will be used, stored and
processed in accordance with Hornetsecurity Privacy Policy, which can be found
at https://www.hornetsecurity.com/en/privacy/. You also have the ability to
update your preferences by visiting Hornetsecurity Customer Portal.
(b) The Licensed Software has the capability to collect and process technical
information such as configuration, performance, usage, consumption data which
may include the number of times you use the “restore” functionality, the size of
the backup, hardware identification, operating system, application software,
peripheral hardware, Internet Protocol Address, The Licensor shall under no
circumstances ever collect or examine the contents of any files you are backing
up or restoring, unless agreed to specifically between the two parties or required
by specific circumstances, in which case you will be informed in advance.
(c) The Licensed Software also provides the ability to generate error report to the
licensor technical support team. During this error report generation process,
which is done through manual user intervention, application debug data files,
configuration files, log files, system information and personal information (Name,
Email, Phone Number) will be generated and submitted for automatic support
case generation.
14. Compliance. During the period this EULA remains in effect and for three (3)
years following the termination of your rights pursuant to clause 8, Licensor has
the right to verify your compliance with this EULA on your premises during your
normal business hours and in a manner that minimises disruption to your
business. The Licensor may use an independent auditor for this purpose with
your prior approval which you shall not unreasonably withhold.
15. Feature and Capacity Limitations in Software – For certain Licensed
Software, your use of the Licensed Software may be limited by the features and
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capacity purchased. In the event that you exceed the purchased capacity, the
Licensed Software may not support certain features or process additional
workloads beyond the maximum capacity until you purchase additional capacity
or upgrade to another suitable version.
16. Community Forums or Blogs – Any information that you post on the
Community Forums or Blogs is deemed non-confidential to you. Hornetsecurity
has no obligation to manage or protect any information (confidential or
personal) that you disclose on the Hornetsecurity / Altaro Community Forums or
Hornetsecurity / Altaro Blogs.
17. Queries. If you have any queries regarding this EULA,
email info@hornetsecurity.com with the word ‘EULA’ as the subject line.
18. Governing Language. Any translation of this License from the English
language is made solely for local requirements and in the event of a dispute
between the English and any non-English versions, the English version of this
License shall govern.
19. General.
(a) Unless you have entered into a separate, written and signed agreement with
the Licensor for the supply of Licensed Software, this EULA is the complete and
exclusive statement of the agreement between you and the 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 or to 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 the Licensor unless confirmed by a
written instrument signed by you and by a duly authorised officer of the
Licensor. No waiver by you or the Licensor of any provision of this EULA or of
any default hereunder shall affect your or the 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.
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(b) 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.
(c) This EULA shall be governed by and construed exclusively in accordance with
the laws of Malta 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 of Malta, 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.
(d) We may transfer our rights and obligations under this License to another
organisation. We will inform you of such assignment. You may only assign your
rights and obligations to another person if we agree in writing prior to the
assignment taking place. A change of control shall constitute an assignment.
(e) Licensor will not be liable for any delay or failure to perform obligations
under this Agreement due to any cause beyond its reasonable control, including
acts of God, industrial disturbances, labor disputes, earthquakes, storms or other
elements of nature; systematic electrical, telecommunications or other utility
failures; riots; acts of terrorism; war; embargoes or acts or orders of government;
(f) If we fail to insist that you perform any of your obligations under this License,
or if we do not enforce our rights against you, or if we delay in doing so, that will
not mean that we have waived our rights against you and will not mean that you
do not have to comply with those obligations. If we do waive a default by you, we
will only do so in writing, and that will not mean that we will automatically waive
any later default by you.
PLEASE INDICATE YOUR ACCEPTANCE OR REFUSAL TO THE TERMS AND
CONDITIONS OF THIS EULA BY SELECTING THE “I ACCEPT THE TERMS IN THE
LICENSE AGREEMENT” OR THE “CANCEL” BUTTON TO ABORT INSTALLATION.
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Barracuda –
The General Terms and Conditions (“General Terms”), together with
all applicable Schedules (collectively, the “Agreement”) are a legal
agreement between you, a legal entity (“Customer”), and Barracuda
Networks, Inc. (“Barracuda”). If you are not legally able to be bound
by the Agreement or do not want to consent to the terms of the
Agreement, your use of the Products is strictly prohibited. Your use of
the Products is subject at all times to this Agreement, as amended
from time to time. If you do not unconditionally agree to the foregoing,
discontinue the installation or use of the Products. If you proceed with
use, you are (i) representing and warranting that you are authorized to
bind the Customer; and (ii) agreeing to the Terms.
Order of Precedence. The General Terms are applicable to all
Barracuda Products and set forth the terms under which the Customer
may use Barracuda Products. Certain Products are subject to
additional terms and conditions, which are set forth in the applicable
“Schedule.” In the event of a conflict or inconsistency between any of
the General Terms and a Schedule, the Schedule will govern.
GENERAL TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING
A BARRACUDA PRODUCT. BY USING A BARRACUDA
PRODUCT, CUSTOMER AGREES TO BE BOUND BY THE TERMS
OF THIS AGREEMENT.
IF CUSTOMER LIVES IN THE UNITED STATES, THIS
AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE
AND CLASS ACTION WAIVER. IT AFFECTS CUSTOMER’S
RIGHTS REGARDING HOW TO RESOLVE ANY DISPUTE WITH
BARRACUDA. PLEASE READ IT CAREFULLY.
1. Definitions.
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1.1. “Barracuda Materials” means all Barracuda proprietary
materials, including, but not limited to, Deliverables, Products and
intellectual property related to Products and Documentation.
1.2. “Deliverables” means any written reports and materials that are
created specifically for Customer as a result of Professional Services
provided hereunder, as set forth in Schedule 6 (“Professional Services
Terms”).
1.3. “Delivery” with respect to Hardware means the date of shipment,
and with respect to Software and Hosted Services means when the
Software or Hosted Service is made available by Barracuda.
1.4. “Documentation” means manuals or other materials provided by
Barracuda related to the Products in electronic or other form, as
amended from time to time by Barracuda.
1.5. “Effective Date” shall mean the date of Delivery of the Products.
1.6. “Hardware” means a physical appliance provided by Barracuda.
1.7. “Hosted Service” means the right to use a cloud system or
platform hosted by Barracuda, which provides the services and
functionality set forth in the applicable Specification.
1.8. “Hosted Service Term” means the length of time for which a
Hosted Service is purchased.
1.9. “Intellectual Property Rights” means copyrights (including,
without limitation, the exclusive right to use, reproduce, modify,
distribute, publicly display and publicly perform the copyrighted work),
trademark rights (including, without limitation, trade names,
trademarks, service marks and trade dress), patent rights (including,
without limitation, the exclusive right to make, use and sell), trade
secrets, moral rights, right of publicity, authors’ rights, contract and
licensing rights, goodwill and all other intellectual property rights as
may exist now and/or hereafter come into existence and all renewals
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and extensions thereof, regardless of whether such rights arise under
the law of the United States or any other state, country or jurisdiction.
1.10. “Product” means, collectively, any Hardware, Software,
Subscriptions, Hosted Service, Services and any combination thereof.
1.11. “Order” means a written purchase order or similar ordering
document, signed or submitted to Barracuda under which the Products
are provided for Customer’s use.
1.12. “Professional Services” means consulting services provided by
Barracuda under a Statement of Work and/or set forth on an Order.
1.13. “Software” means software embedded in Hardware, used to
provide a Hosted Service or any software licensed to Customer as a
Subscription, including any Updates thereto.
1.14. “Service” or “Services” means Professional Services and
Support Services.
1.15. “Specification” means the functionality for the Product as
documented in the Product data sheet.
1.16. “Statement of Work” or “SOW” means a document between
Barracuda and Customer, describing Professional Services, rates and
timelines for those Professional Services.
1.17. “Subscription” means a license provided by Barracuda for a
Subscription Term under which Barracuda provides access to certain
features and functionality, as described in the Specification, which is
provided subject to the applicable Schedule, if any, and these General
Terms.
1.18. “Subscription Term” means the length of time for which a
Subscription is purchased.
1.19. “Support Term” means the length of time for which the Support
Service is purchased.
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1.20. “Support Services” means the maintenance and technical
support services provided by Barracuda with respect to each Product,
as described in Schedule 5 (“Support Services Terms”).
1.21. “Update” means minor enhancements, error corrections and bug
fixes to the Software.
2. Modification. Barracuda reserves the right to modify the
Agreement at any time, in its sole discretion, without liability to
Customer. The Agreement, as amended, will be effective upon use of
the Products for all existing users immediately after any amended
terms are posted online. If Customer has signed up for email updates,
Barracuda will provide email notice to Customer of the update.
Customer’s continued use of the Products shall be deemed
acceptance of the modified terms.
3. Orders and Statements of Work.
3.1. Orders. Products will only be provided to Customer after
Barracuda has received and accepted an Order for such Product.
Orders are not binding upon Barracuda until accepted in writing by
Barracuda. All Orders will be governed by this Agreement and are
noncancelable and nonrefundable after Delivery, except as set forth in
Section 5.2 (“Returns”).
3.2. Statements of Work. Each Statement of Work is governed by this
Agreement. Barracuda will not be obligated to perform any
Professional Services until a Statement of Work describing those
Professional Services has been agreed upon by both parties or an
Order listing those Professional Services has been accepted by
Barracuda in writing.
4. Payment Terms.
4.1. Fees and Expenses. If Customer purchases directly from
Barracuda, Customer will pay Barracuda the fees specified on the
invoice associated with each Order or Statement of Work (“Fees”). If
Customer purchases through a Barracuda authorized reseller, all fees
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and other procurement and delivery terms shall be agreed upon
between Customer and the applicable reseller. Fees for usage in
excess of amounts purchased will be billed by Barracuda in the next
billing cycle and Customer acknowledges that such additional fees
must be paid in accordance with the terms herein.
4.2. Payment. If Customer purchases directly from Barracuda,
payment is due within thirty (30) days of the date of each invoice.
Payment will be made by credit card, wire transfer or another
prearranged payment method unless Barracuda has extended credit
terms to Customer. All Fees described in an Order or Statement of
Work will be fully invoiced in advance, unless otherwise agreed to in
writing by Barracuda. If any payment is past due, Barracuda may,
without limiting any remedies available to Barracuda, suspend
performance until payment is made current. Customer will pay interest
on all delinquent amounts at the lesser of one and one half percent
(1.5%) per month or the maximum rate permitted by applicable law.
4.3. Increases. Barracuda reserves the right to increase prices for
Products at any time, provided however that any price increase for
Subscriptions, Hosted Services and Support Services will not go into
effect until the end of the then-current term, as applicable.
4.4. Taxes. All Fees are exclusive of all sales, use, excise, value
added, goods and services, withholding and other taxes, and all
customs, duties and tariffs now or hereafter claimed or imposed by
any governmental authority upon the sale or use of the Products,
which shall be invoiced to and paid by the Customer. If Customer is
required by law to make any deduction or withholding on any
payments due to Barracuda, Customer will notify Barracuda and will
pay Barracuda any additional amounts necessary to ensure that the
net amount Barracuda receives, after any deduction or withholding,
equals the amount Barracuda would have received if no deduction or
withholding had been required. Additionally, Customer will provide
Barracuda with evidence, to the reasonable satisfaction of Barracuda,
showing that the withheld or deducted amounts have been paid to the
relevant governmental authority. For purposes of calculating sales and
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similar taxes, Barracuda will use the address set forth on the Order or
Statement of Work, as applicable, for the jurisdiction to which Products
and shipments are delivered unless Customer has otherwise notified
Barracuda. Customer will provide tax exemption certificates or directpay
letters to Barracuda as applicable.
4.5. Payment Disputes. Customer must notify Barracuda of any billing
problems or discrepancies within sixty (60) days of the applicable
Barracuda invoice date. Customer must send such notification to
Barracuda as indicated in Section 21 (“Notices”). If Customer does not
bring such problems or discrepancies to Barracuda’s attention within
such sixty (60) day period, Customer agrees that it waives the right to
dispute such problems or discrepancies.
4.6. Offsets. Customer shall pay all amounts due and payable to
Barracuda under this Agreement to Barracuda in full without any
setoff, recoupment, counterclaim, deduction, debit or withholding for
any reason (other than any deduction or withholding of tax as may be
required by applicable law and in compliance with Section 4.4
(“Taxes”).
4.7. Import/Export Fees. Customer is responsible for any import or
export fees or duties associated with its purchase or use of the
Products.
5. Title and Returns.
5.1. Title; Ownership.
5.1.1. Hardware. All Hardware is shipped from Barracuda’s designated
manufacturing facility or point of origin (Exworks origin) (Incoterms
2010). Title to such Hardware and the risk of loss of or damage to
Hardware shall pass to Customer at the time of shipment from
Barracuda’s facility. Barracuda is authorized to designate a carrier
pursuant to Barracuda’s standard shipping practices unless otherwise
specified in writing by Customer. Customer must provide written notice
to Barracuda within ten (10) days of Delivery of the Products of any
non-conformity with the Order (e.g., Delivery of the wrong Product or
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incorrect quantities). Partial shipment is expressly permitted
hereunder, and separate charges for shipping and handling will be
charged on Barracuda’s invoice.
5.1.2. Software. Barracuda retains right, title and ownership to all
Software, and Customer’s license and usage rights to Software as set
forth in Schedule 1 (“Software Use and Restrictions”).
5.1.3. Customer Data. “Customer Data” means all data, including text,
sound, video, or image files and software, that Customer provides to
Barracuda, or that is provided on Customer’s behalf. Customer retains
ownership of Customer Data at all times. Barracuda will use Customer
Data only in accordance with the Barracuda Privacy Policy.
5.2. Returns. Customer may cancel all Orders for new Products
(excluding renewals, upgrades and migrations) within thirty (30) days
of the Effective Date of any Term (“Cancellation Period”).” After the
Cancellation Period, all Orders are non-cancellable and the Fees paid
to Barracuda are nonrefundable. Fees for installation or training
provided by Barracuda are non-cancellable and nonrefundable once
performance commences.
6. Third Party Products and Services. Third party products or services
may contain features designed to interoperate with the Products. To
use such features, Customer must obtain access to such third-party
apps from their respective providers. If Customer chooses to utilize
such third-party apps, the following terms shall apply:
(i) All governing terms and conditions, including data processing
terms, shall be entered into between Customer and the applicable
third-party app provider;
(ii) Customer may be required to grant Barracuda access to
Customer’s account on such third-party apps;
(iii) Customer instructs Barracuda to allow the third-party app provider
to access Customer Data as required for interoperation with the
Products; and
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(iv) In the event the operation of a third party app requires the
processing of personal data to which the General Data Protection
Regulation (“GDPR”) applies in a country that does not provide
adequate data protection safeguards, then Customer and the third
party app provider must put in place an adequate data transfer
mechanism as set forth in Arts. 46 or 47 of the GDPR, including
executing appropriate Standard Contractual Clauses, as needed.
Barracuda shall not be responsible for any disclosure, modification or
deletion of Customer Data resulting from access by such third-party
app providers. Third party app providers do not operate as
subprocessors to Barracuda. Barracuda is not liable for, and does not
warrant or support, any such third-party apps. Barracuda cannot
guarantee the continued availability of such third party apps and may
cease providing them without entitling Customer to any refund, credit
or other compensation, if, for example, the provider of the third-party
app ceases to make its product or service available in a manner
acceptable to Barracuda.
7. Professional Services. If applicable, Professional Services will be
provided in accordance with these General Terms and Schedule
6 (“Professional Services Terms”).
8. Support Services and Product Upgrades.
8.1. Support Services.
8.1.1. Support Services Purchase. Support Services may be
purchased separately, or for Hosted Services, may be bundled into the
price. Customer is not entitled to Support Services until Barracuda
receives payment in full for such Support Services.
8.1.2. Support Services Entitlement. For Customers with active
Support Services, the following shall apply:
8.1.2.1. Support Services will only be available for the specific Product
for which the Support Services is purchased. Applying Updates or
receiving Support Services on systems where no valid entitlement has
been purchased is strictly forbidden and in violation of this Agreement.
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8.1.2.2. For Hardware, Customer is entitled to receive replacement of
defective hardware as set forth in Schedule 5 (“Support Services
Terms”).
8.1.2.3. For Software, Customer is entitled to Updates to Software.
Barracuda shall provide Customer with all Updates, without additional
charge, in accordance with Schedule 5 (“Support Services Terms”).
Upon Delivery to Customer, each Update will constitute Software and
will thereafter be subject to and governed by this Agreement, including
without limitation the license and warranty terms.
8.1.2.4. Support Services for Software are required at all times for
continued access to the full functionality and proper operation of the
Product. Customer acknowledges that failure to pay for ongoing
Support Services will limit or degrade the functionality of the Products.
8.2. Upgrades. Upgrades are not included in Support Services and
may be purchased separately from Barracuda.
9. Intellectual Property.
9.1. Ownership of Barracuda Materials; Restrictions. All Intellectual
Property Rights in Barracuda Materials belong exclusively to
Barracuda and its licensors. Customer will not (and will not allow any
third party to): (i) disassemble, decompile, reverse compile, reverse
engineer or attempt to discover any source code or underlying ideas
or algorithms in any Barracuda Materials (except to the limited extent
that applicable law prohibits reverse engineering restrictions); (ii) sell,
resell, distribute, sublicense or otherwise transfer the Barracuda
Materials, or make the functionality of the Barracuda Materials
available to any other party through any means (unless Barracuda has
provided prior written consent); (iii) without the express prior written
consent of Barracuda, conduct any benchmarking or comparative
study or analysis involving the Barracuda Materials (“Benchmarking”)
for any reason or purpose except, to the limited extent absolutely
necessary, to determine the suitability of Products to interoperate with
Customer’s internal computer systems; (iv) disclose or publish to any
third party any Benchmarking or any other information related thereto;
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(v) use the Barracuda Materials or any Benchmarking in connection
with the development of products, services or subscriptions that
compete with the Barracuda Materials; (vi) use any Barracuda
trademarks for any purpose not expressly granted by Barracuda in
advance and in writing; or (vii) reproduce, alter, modify or create
derivatives of the Barracuda Materials.
9.2. Feedback. Customer hereby grants Barracuda a perpetual,
irrevocable, worldwide license to use any Feedback (as defined
below) that Customer communicates to Barracuda, without
compensation, without any obligation to report on such use, and
without any other restriction. Barracuda’s rights granted in the
previous sentence include, without limitation, the right to exploit
Feedback in any and every way, as well as the right to grant
sublicenses. Notwithstanding the provisions of Section 12
(“Confidential Information”), Feedback will not be considered
Customer’s Confidential Information. “Feedback” refers to any
suggestion or idea for modifying any Products, including, without
limitation, all Intellectual Property Rights in and to any such suggestion
or idea.
10. Waiver of Consequential Damages and Limitation of Liability.
10.1. WAIVER OF CONSEQUENTIAL DAMAGES. UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY, OR ITS SUPPLIERS,
RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES,
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM
OR RELATED TO THE PRODUCTS, WHETHER SUCH CLAIM IS
BASED ON WARRANTY, CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE (EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
10.2. LIMITATION OF LIABILITY. THE TOTAL AGGREGATE
LIABILITY OF BARRACUDA AND ITS SUPPLIERS, RESELLERS,
PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM
OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE
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TOTAL AMOUNTS OWED OR PAID BY CUSTOMER FOR THE
RELEVANT PRODUCTS DURING THE TWELVE (12) MONTH
PERIOD IMMEDIATELY PRECEDING THE FIRST OCCURRENCE
OF THE EVENTS GIVING RISE TO SUCH LIABILITY.
10.3. APPLICABILITY. THE FOREGOING LIMITATIONS OF
LIABILITY SHALL APPLY (A) TO LIABILITY FOR NEGLIGENCE; (B)
REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, STRICT PRODUCT LIABILITY OR
OTHERWISE; (C) EVEN IF A PARTY IS ADVISED IN ADVANCE OF
THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF
SUCH DAMAGES WERE FORESEEABLE; (D) WHETHER THE
DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON
THE PRODUCTS, FROM INABILITY TO USE THE PRODUCTS OR
FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF
THE PRODUCTS (INCLUDING SUCH DAMAGES INCURRED BY
THIRD PARTIES). SUCH LIMITATION SHALL APPLY
NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY AND TO THE FULLEST EXTENT
PERMITTED BY LAW.
THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL
APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER
APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT
EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE
UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE
APPLICABLE JURISDICTION.
11. Export and Compliance with Laws.
11.1. Export.
11.1.1. The Products, including technical data, are subject to U.S.
export control laws, including, but not limited to, the U.S. Export
Administration Act and its associated regulations, and may be subject
to export or import regulations in other countries. Customer agrees to
strictly comply with all such regulations and acknowledges that it has
the responsibility to obtain licenses to export, re-export or import
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Products. Barracuda provides multiple versions of Products targeted
for specific geographic regions.
11.1.2. Customer shall not: (a) permit any third party to access or use
the Products in violation of any U.S. law or regulation; (b) export the
Products or otherwise relocate them unless such export and/or
relocation is in full compliance with all applicable local and U.S. laws
and regulations. Without limiting the foregoing, Customer shall not
permit any third party to access or use the Products in, or export it to,
a country subject to a United States embargo (currently, Cuba, Iran,
North Korea, Sudan, the Crimea Region in the Ukraine and Syria); or
(c) authorize the relocation of the Products to a prohibited entity,
territory or country, or take any action otherwise in violation of any
applicable restrictions or regulations.
11.2. Compliance with Laws. Customer agrees to comply with all
applicable laws related to its performance of the obligations set forth in
this Agreement, including, but not limited to, any applicable privacy
laws.
11.2.1 If Customer is a United States Government agency, the
Products and Documentation qualify as “commercial items”, as that
term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.
2.101), consisting of “commercial computer software” and “commercial
computer software documentation” as such terms are used in FAR
12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1
through 227.7202-4, and notwithstanding any other FAR or other
contractual clause to the contrary in any agreement into which this
Agreement may be incorporated, Government end user will acquire
the Products and Documentation with only those rights set forth in this
Agreement. Use of either the Products or Documentation or both
constitutes an agreement by the Government that the Products and
Documentation are “commercial computer software” and “commercial
computer software documentation”, and constitutes acceptance of the
rights and restrictions herein.
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11.2.2. The Products are provided with Restricted Rights. Use,
duplication or disclosure for or by the government of the United States,
including without limitation any of its agencies or instrumentalities, is
subject to restrictions set forth, as applicable: (i) in subparagraphs (a)
through (d) of the Commercial Computer Software-Restricted Rights
clause at FAR 52.227-19; or (ii) in similar clauses in other federal
regulations, including the NASA FAR supplement. The contractor or
manufacturer is Barracuda. Customer shall not remove or deface any
restricted rights notice or other legal notice appearing on the Products
or on any packaging or other media associated with the Products.
12. Confidential Information.
12.1. Definition. “Confidential Information” refers to the following
information disclosed by one party (“ Discloser”) to the other
(“Recipient”): (a) any document Discloser marks as “Confidential” or
“Proprietary”; (b) any information Discloser orally designates as being
“Confidential” at the time of disclosure, or which given the
circumstances of the disclosure and the nature of the information
would reasonably be considered confidential; (c) the non-public
features and functions of the Products, Barracuda’s price lists,
technology, trade secrets, marketing strategies, customer lists, mail
lists and information concerning the design or methods of manufacture
of the Products, for which Barracuda is Discloser; (d) this Agreement;
and (e) any other nonpublic, sensitive information disclosed by
Discloser. Notwithstanding the foregoing, Confidential Information
does not include information that: (i) is in Recipient’s possession at the
time of disclosure and not in violation of any confidentiality obligations;
(ii) becomes known publicly, before or after disclosure, other than as a
result of Recipient’s improper action or inaction; or (iii) is approved for
release in writing by Discloser.
12.2. Maintenance of Confidentiality. Each party agrees that it shall: (i)
take reasonable measures to protect the Confidential Information by
using the same degree of care, but no less than a reasonable degree
of care, to prevent the unauthorized use, dissemination or publication
of the Confidential Information as the Recipient uses to protect its own
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confidential information of a similar nature; (ii) limit disclosure to those
persons within Recipient’s organization who have a clear and welldefined
“need to know” and who have previously agreed in writing to
obligations at least as stringent as the provisions hereof, either prior to
receipt of Confidential Information as a condition of their employment
or in order to obtain the Confidential Information; (iii) not copy, reverse
engineer, disassemble, create any works from, or decompile any
prototypes, Products or other tangible objects which embody the other
party’s Confidential Information and/or which are provided to the party
hereunder; and (iv) comply with, and obtain all required authorizations
arising from, all U.S. and other applicable export control laws or
regulations. Confidential Information shall not be used or reproduced
in any form except as required to accomplish the purposes and intent
of an Order or Statement of Work. Any reproduction of Confidential
Information shall be the property of Discloser and shall contain all
notices of confidentiality contained on the original Confidential
Information.
12.3. Exceptions. The parties agree that the foregoing shall not apply
to any information that Recipient can prove, through written evidence:
(i) is or becomes publicly known and made generally available through
no improper action or inaction of Recipient; (ii) was already in its
possession or known by it prior to disclosure by Discloser to Recipient;
(iii) is independently developed by Recipient without use of, or
reference to, any of Discloser’s Confidential Information; or (iv) was
rightfully disclosed to it by, or obtained from, a third party without an
obligation of confidentiality. Recipient may make disclosures required
by law or court order provided that Recipient: (a) uses diligent efforts
to limit disclosure and to obtain, if possible, confidential treatment or a
protective order; (b) has, to the extent legally permissible, given
prompt advance notice to Discloser of such required disclosure.
12.4. Injunction. Recipient agrees that breach of this Section 12 would
cause Discloser irreparable injury, for which monetary damages would
not provide adequate compensation, and that in addition to any other
remedy, Discloser will be entitled to seek injunctive relief against such
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breach or threatened breach, without proving actual damage or
posting a bond or other security.
12.5. Return of Confidential Information. With respect to each item of
Confidential Information, the obligations of Section 12.2 (“Maintenance
of Confidentiality”) will terminate five (5) years after the date of
disclosure. Upon termination of this Agreement, Recipient shall return
all copies of Confidential Information to Discloser or certify, in writing,
the destruction thereof. Where permissible by law, Recipient may
retain one copy of all written materials returned to provide an archive
record of the disclosure, which remains subject to the confidentiality
terms of this Section 12.
12.6. Retention of Rights. This Agreement does not transfer ownership
of Confidential Information or grant a license thereto. Discloser will
retain all right, title and interest in and to all of its Confidential
Information.
12.7. Collection of Customer Data. Customer agrees to allow
Barracuda to collect Customer Data from its Products in order to
enhance its security products and to optimize and monitor the
performance of the Product. Customer Data will be collected
electronically and automatically. Customer Data will be kept private
and will only be reported by Barracuda in the aggregate.
13. Term, Termination, and Survival.
13.1. Term. This Agreement will become effective on the Effective
Date and will continue in effect for such time as Customer maintains
use or possession of Products.
13.2. Termination for Cause. Either party may terminate this
Agreement upon written notice of a material breach by the other party
subject to a thirty (30) day cure period (“Cure Period”). If the breaching
party has failed to cure the breach within the Cure Period after receipt
by the breaching party of written notice of such breach, the
non-breaching party may terminate this Agreement. This Agreement
may be automatically terminated by Barracuda in the event Customer
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has breached any license restriction and, in Barracuda’s
determination, that breach cannot be adequately cured within the Cure
Period.
13.3. Support Services. Support Services will begin on the date of
Delivery of the Products and will continue in effect for the duration of
the Support Term. Support Services will automatically renew at the
end of any Support Term, at the then-current price, for an additional
period equal to the length of the prior Support Term. Either party may
provide notification of its intention to not renew at least sixty (60) days
prior to the expiration of the then-current Support Term. Customer
may terminate Support at any time, for its convenience, on thirty (30)
days’ prior written notice to Barracuda; provided, however, that no
refund shall be owed and Customer is obligated to pay any remaining
Fees owing for the remainder of the then-current Support Term within
thirty (30) days of the effective date of the termination.
13.4. Subscriptions. The term of each Subscription will begin on the
date of Delivery of the Products and will continue in effect for the
duration of the Subscription Term. Subscriptions will automatically
renew at the end of any Subscription Term, at the then-current price,
for an additional period equal to the length of the prior Subscription
Term. Either party may provide notification of its intention to not renew
at least sixty (60) days prior to the expiration of the then-current
Subscription Term. Customer may terminate a Subscription at any
time, for its convenience, on thirty (30) days’ prior written notice to
Barracuda; provided, however, that no refund shall be owed and
Customer is obligated to pay any remaining Fees owing for the
remainder of the then-current Subscription Term within thirty (30) days
of the effective date of the termination.
13.5. Hosted Services. The term of each Hosted Service will begin on
the date of Delivery and will continue in effect for the duration of the
Hosted Service Term. Hosted Services will automatically renew at the
end of any Hosted Service Term, at the then-current price, for an
additional period equal to the length of the prior Hosted Service Term.
Either party may provide notification of its intention to not renew at
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least sixty (60) days prior to the expiration of the then-current Hosted
Service Term. Customer may terminate a Hosted Service at any time,
for its convenience, on thirty (30) days’ prior written notice to
Barracuda; provided, however, that no refund shall be owed and
Customer is obligated to pay any remaining Fees owing for the
remainder of the then-current Hosted Service Term within thirty (30)
days of the effective date of the termination.
13.6. Professional Services; Statements of Work. The term of each
SOW will be as set forth in the applicable SOW. If no term is
expressed in a SOW, then the term of that SOW will begin upon
commencement of the Professional Services and will continue until the
Professional Services described in that SOW are complete or the
SOW is earlier terminated as set forth herein. Unless otherwise stated
in a SOW, Customer may terminate a SOW at any time for its
convenience by providing at least thirty (30) days’ prior written notice
to Barracuda; provided, however, that no refund will be owed and
Customer is obligated to pay any amounts owing for Professional
Services and Deliverables provided or performed under that SOW up
to and including the date of termination.
13.7. Effect of Termination. Except for termination of this Agreement
by Barracuda for Customer’s breach, no termination of this Agreement
shall impact any active Subscription, Hosted Service, Support
Services or SOW that extends beyond such termination, and this
Agreement shall continue to govern and be effective until expiration or
termination of such Subscription, Hosted Service, Support Services or
SOW. The provisions of Section 4 (“Payment Terms”), Section 10
(“Waiver of Consequential Damages and Limitation of Liability”),
Section 11 (“Export and Compliance with Laws”), Section 12
(“Confidential Information”), Section 14 (“Governing Law, Venue and
Dispute Resolution”), and Schedule 2 (“Limited Warranty”) and any
other terms which by their nature should survive termination shall
survive termination of this Agreement.
14. Governing Law, Venue and Dispute Resolution.
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14.1. GOVERNING LAW AND VENUE. THESE TERMS AND THE
USE AND PROVISION OF PRODUCTS WILL BE GOVERNED
SOLELY BY THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO: (A) ANY CONFLICTS OF LAW
PRINCIPLES THAT WOULD APPLY THE SUBSTANTIVE LAWS OF
ANOTHER JURISDICTION TO THE PARTIES’ RIGHTS OR
OBLIGATIONS; (B) THE 1980 UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS; OR
(C) OTHER INTERNATIONAL LAWS. THE PARTIES CONSENT TO
THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS IN SANTA CLARA COUNTY,
CALIFORNIA.
14.2. DISPUTE RESOLUTION. IF CUSTOMER LIVES IN THE
UNITED STATES, THIS SECTION CONTAINS A BINDING
ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT
AFFECTS CUSTOMER’S RIGHTS REGARDING HOW TO RESOLVE
ANY DISPUTE CUSTOMER MAY HAVE WITH BARRACUDA.
PLEASE READ IT CAREFULLY.
The parties will attempt to resolve any claim, dispute or controversy
(whether in contract, tort or otherwise) against Barracuda, its agents,
employees, successors, assigns or affiliates (collectively for purposes
of this paragraph, “Barracuda”) arising out of or relating to this
Agreement, the Barracuda Materials, Barracuda advertising, or any
related purchase (a “Dispute”) through face to face negotiation with
persons fully authorized to resolve the Dispute or through mediation
utilizing a mutually agreeable mediator, rather than through litigation. If
the parties are unable to resolve the Dispute through negotiation or
mediation within a reasonable time after written notice from one party
to the other that a Dispute exists, the Dispute will be settled by binding
arbitration in accordance with the then current CPR Rules for Non-
Administered Arbitration. The Arbitration will be conducted before one
(1) independent and impartial arbitrator. The arbitration hearing shall
take place in Cupertino, California and will be governed by the United
States Federal Arbitration Act to the exclusion of any inconsistent
state laws. The arbitrator shall base his or her award on the terms of
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this Agreement and will follow the law and judicial precedents that a
United States District Court Judge sitting in the county of Santa Clara,
California would apply to the Dispute. The arbitrator shall render his or
her award in writing and will include the findings of fact and conclusion
of law upon which his or her award is based. Judgment upon the
arbitration award may be entered by any court of competent
jurisdiction. The existence, content and results of any negotiation,
mediation or arbitration will be treated as confidential. Notwithstanding
the foregoing, either party will have the right to obtain from a court of
competent jurisdiction a temporary restraining order, preliminary
injunction or other equitable relief to preserve the status quo or
prevent irreparable harm, although the merits of the underlying
Dispute will be resolved in accordance with this paragraph.
THE PARTIES AGREE TO ARBITRATE SOLELY ON AN
INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT
PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A
PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR
REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL
TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE
PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER
ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
15. Permission to Use Logo. Customer grants Barracuda permission
to use Customer’s name and/or logo on the Barracuda website, or any
other marketing material when referring to Customer. Customer will
retain all title and rights in its name and logos.
16. Changes to Products. Barracuda reserves the right at any time to
modify, suspend or discontinue providing the Products or any part
thereof and to alter prices, features, Specifications, capabilities,
functions, licensing terms, release dates, general availability or other
characteristics of any future releases in its sole discretion, without
prior notice.
17. Relationship of the Parties. The parties intend that the
relationship created between them by virtue of this Agreement shall be
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that of an independent contractor, and nothing herein shall be
construed to create an agency, joint venture, partnership or other form
of business association between them. Barracuda and its agents,
employees and servants shall not be deemed to be an employee,
agent or servant of Customer or its affiliated entities, if any. Barracuda
is not to be considered an agent or employee of Customer for any
purpose, and none of the benefits provided by Customer or its
employees are available to Barracuda or Barracuda’s employees,
agents or servants. Barracuda shall be solely and entirely responsible
for Barracuda’s acts and for the acts of Barracuda’s agents,
employees, servants and subcontractors during the performance of
this Agreement.
18. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their
mutual intent, and this Agreement will not be construed in favor of or
against either party by reason of authorship. The headings herein are
for convenience only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
19. Force Majeure. Except with respect to payment of Fees, neither
party shall be liable for any failure to timely perform any of its
obligations under this Agreement if such failure is caused by the
occurrence of any event beyond the reasonable control of such party,
including, without limitation, fire, flood, strikes, hurricanes, and other
industrial disputes, failure of raw material, failure of transport,
accidents, wars, riots, insurrections, acts of God or orders of any
government department or agency.
20. Severability. In the event that a provision of this Agreement is
held to be invalid or otherwise unenforceable, such provision will be
interpreted to fulfill its intended purpose to the maximum extent
permitted by applicable law, and the remaining provisions of this
Agreement will continue in full force and effect.
21. Notices. Barracuda may send notices pursuant to this Agreement
to Customer’s email contact points provided by Customer, and such
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notices will be deemed received 24 hours after they are sent.
Customer may send notices pursuant to this Agreement to Barracuda
at 3175 South Winchester Blvd., Campbell, CA 95008, Attn: Legal
Department, and such notices will be deemed received 72 hours after
they are sent.
22. Entire Agreement, Waiver and Assignment.
22.1. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
hereof and supersedes and replaces all prior or contemporaneous
understandings or agreements, written or oral. If any term or condition
in this Agreement conflicts with any term or condition in any Order,
invoice or similar supplementary document submitted by Customer,
the term or condition set out in this Agreement shall prevail. Unless
otherwise expressly and mutually agreed in writing by the parties,
under no circumstances shall any Order, invoice or similar
supplementary document issued by Customer in connection with the
Products supersede the terms of this Agreement. Any such
documentation shall be solely for Customer’s internal business
purposes, and in no event shall any terms and conditions, or other
charges of any such document modify or become a part of this
Agreement or become binding on Barracuda, even if signed by
Barracuda.
22.2. Waiver. Neither party will be deemed to have waived any of its
rights under this Agreement by lapse of time or by any statement or
representation other than by an authorized representative in an explicit
written waiver. No waiver of a breach of this Agreement will constitute
a waiver of any other breach of this Agreement.
22.3. Assignment. Customer may not assign or transfer any of its
rights or obligations under this Agreement without Barracuda’s prior
written consent. Barracuda may freely assign its rights and obligations
under this Agreement. Any attempted assignment or transfer in
violation of the foregoing will be void. Except to the extent forbidden in
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this section, this Agreement will be binding upon and inure to the
benefit of the parties’ respective successors and assigns.
Synology –
IMPORTANT–READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“EULA”) IS A
LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) AND
SYNOLOGY, INC. (“SYNOLOGY”) FOR THE SYNOLOGY SOFTWARE INSTALLED ONTO THE
SYNOLOGY PRODUCT PUCHASED BY YOU (THE “PRODUCT”), OR LEGALLY
DOWNLOADED FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY
SYNOLOGY ( “SOFTWARE”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY USING THE PRODUCTS
CONTAINING THE SOFTWARE, INSTALLING THE SOFTWARE ONTO THE PRODUCTS OR
DEVICE CONNECTED TO THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS OF
THIS EULA, DO NOT USETHE PRODUCTS CONTAINING THE SOFTWAREOR DOWNLOAD
THE SOFTWARE FROM WWW.SYNOLOGY.COM, OR ANY OTHER CHANNEL PROVIDED BY
SYNOLOGY.INSTEAD, YOU MAY RETURN THE PRODUCT TO THE RESELLER WHERE YOU
PURCHASED IT FOR A REFUND IN ACCORDANCE WITH THE RESELLER’S APPLICABLE
RETURN POLICY.
Section 1. Limited Software License. Subject to the terms and conditions of this
EULA, Synology grants you a limited, non-exclusive, non-transferable, personal license
to install, run and use one copy of the Software loaded on the Product or on your
device connected to the Product solely relating to your authorized use of the Product.
Section 2. Documentation. You may make and use a reasonable number of copies of
any documentation provided with the Software; provided that such copies will only be
used for internal business purposes and are not to be republished or redistributed
(either in hard copy or electronic form) to any third party.
Section 3. Backup. You may make a reasonable number of copies of the Software for
backup and archival purposes only.
Section 4. Updates. Any software provided to you by Synology or made available on
the Synology website at www.synology.com (“Website”) or any other channel provided
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by Synology that updates or supplements the original Software is governed by this
EULA unless separate license terms are provided with such updates or supplements, in
which case, such separate terms will govern.
Section 5. License Limitations. The license set forth in Sections 1, 2 and 3 applies only
to the extent that you have ordered and paid for the Product and states the entirety of
your rights with respect to the Software. Synology reserves all rights not expressly
granted to you in this EULA. Without limiting the foregoing, you shall not authorize or
permit any third party to: (a) use the Software for any purpose other than that in
connection with the Product; (b) license, distribute, lease, rent, lend, transfer, assign or
otherwise dispose of the Software; (c) reverse engineer, decompile, disassemble or
attempt to discover the source code of or any trade secrets related to the Software,
except and only to the extent that such conduct is expressly permitted by applicable
law notwithstanding this limitation; (d) adapt, modify, alter, translate or create any
derivative works of the Software; (e) remove, alter or obscure any copyright notice or
other proprietary rights notice on the Software or Product; or (f) circumvent or attempt
to circumvent any methods employed by Synology to control access to the
components, features or functions of the Product or Software. Subject to the
limitations specified in this Section 5, you are not prohibited from providing any
services hosted by Synology NAS server to any third party for commercial purpose.
Section 6. Open Source. The Software may contain components licensed to Synology
under the GNU General Public License (“GPL Components”), currently available
at http://www.gnu.org/licenses/gpl.html. The terms of the GPL will control solely with
respect to the GPL Components to the extent that this EULA conflicts with the
requirements of the GPL with respect to your use of the GPL Components, and, in such
event, you agree to be bound by the GPL with respect to your use of such components.
Section 7. Audit.Synology will have the right to audit your compliance with the terms
of this EULA. You agree to grant Synology a right to access to your facilities, equipment,
books, records and documents and to otherwise reasonably cooperate with Synology in
order to facilitate any such audit by Synology or its agent authorized by Synology.
Section 8. Ownership. The Software is a valuable property of Synology and its
licensors, protected by copyright and other intellectual property laws and treaties.
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Synology or its licensors own all rights, titles and interests in and to the Software,
including but not limited to copyright and any other intellectual property rights.
Section 9. Limited Warranty.Synology provides a limited warrant that the Software
will substantially conform to Synology’s published specifications for the Software, if any,
or otherwise set forth on the Website, for a period required by your local law. Synology
will use commercially reasonable efforts to, in Synology’s sole discretion, either correct
any such nonconformity in the Software or replace any Software that fails to comply
with the foregoing warranty, provided that you give Synology written notice of such
noncompliance within the warranty period. The foregoing warranty does not apply to
any noncompliance resulting from any: (w) use, reproduction, distribution or disclosure
not in accordance with this EULA; (x) any customization, modification or other
alteration of the Software by anyone other than Synology; (y) combination of the
Software with any product, services or other items provided by anyone other than
Synology; or (z) your failure to comply with this EULA.
Section 10. Support. During the period specified in the Section 9, Synology will make
available to you the support services. Following the expiration of the applicable period,
support for Software may be available from Synology upon written request.
Section 11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE
SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. SYNOLOGY AND ITS SUPPLIERS
HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE,
TITLE AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. WITHOUT LIMITING
THE FOREGOING, SYNOLOGY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE
OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS.
Section 12. Disclaimer of Certain Damages. IN NO EVENT WILL SYNOLOGY OR ITS
LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING,
BUT NOT LIMITED TO LOSS OF DATA, INFORMATION, REVENUE, PROFIT OR BUSINESS)
ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE
OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE,
WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
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OTHER THEORY EVEN IF SYNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Section 13. Limitation of Liability. SYNOLOGY’S AND ITS SUPPLIERS’ LIABILITY
ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SOFTWARE
OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA OR THE SOFTWARE IS
LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCT REGARDLESS OF
THE AMOUNT OF DAMAGES YOU MAY INCUR AND WHETHER BASED ON CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY. The foregoing
disclaimer of warranties, disclaimer of certain damages and limitation of liability will
apply to the maximum extent permitted by applicable law. The laws of some
states/jurisdictions do not allow the exclusion of implied warranties or the exclusion or
limitation of certain damages. To the extent that those laws apply to this EULA, the
exclusions and limitations set forth above may not apply to you.
Section 14. Export Restrictions. You acknowledge that the Software is subject to U.S.
export restrictions. You agree to comply with all applicable laws and regulations that
apply to the Software, including without limitation the U.S. Export Administration
Regulations.
Section 15. Termination. Without prejudice to any other rights, Synology may
terminate this EULA if you do not abide by the terms and conditions contained herein.
In such event, you must cease use of the Software and destroy all copies of the
Software and all of its component parts.
Section 16. Assignment. You may not transfer or assign your rights under this EULA to
any third party, except for that pre-installed in the Products. Any such transfer or
assignment in violation of the foregoing restriction will be void.
Section 17. Applicable Law. Unless expressly prohibited by local law, this EULA is
governed by and construed in accordance with the laws of the country, in accordance
with which Synology Inc. was organized without regard to any conflict of law principles
to the contrary.
Section 18. Dispute Resolution. Any dispute, controversy or claim arising out of or
relating to this EULA will be resolved exclusively and finally by arbitration conducted by
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three neutral arbitrators in accordance with the procedures of the Arbitration Law and
related enforcement rules of the country in which Synology Inc. was organized. In such
cases, the arbitration will be limited solely to the dispute between you and Synology.
The arbitration, or any portion of it, will not be consolidated with any other arbitration
and will not be conducted on a class-wide or class action basis. The arbitration shall
take place in Taipei and the arbitration proceedings shall be conducted in English or, if
both parties so agree, in Mandarin Chinese. The arbitration award shall be final and
binding on the parties and may be enforced in any court having jurisdiction. You
understand that, in the absence of this provision, you would have had a right to litigate
any such dispute, controversy or claim in a court, including the right to litigate claims
on a class-wide or class-action basis, and you expressly and knowingly waives those
rights and agrees to resolve any disputes through binding arbitration in accordance
with the provisions of this Section 18. Nothing in this Section shall be deemed to
prohibit or restrict Synology from seeking injunctive relief or seeking such other rights
and remedies as it may have at law or equity for any actual or threatened breach of any
provision of this EULA relating to Synology’s intellectual property rights.
Section 19. Attorneys’ Fees. In any arbitration, mediation, or other legal action or
proceeding to enforce rights or remedies under this EULA, the prevailing party will be
entitled to recover, in addition to any other relief to which it may be entitled, costs and
reasonable attorneys’ fees.
Section 20. Severability. If any provision of this EULA is held by a court of competent
jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will
remain in full force and effect.
Section 21. Entire Agreement. This EULA sets forth the entire agreement of Synology
and you with respect to the Software and the subject matter hereof and supersedes all
prior and contemporaneous understandings and agreements whether written or oral.
No amendment, modification or waiver of any of the provisions of this EULA will be
valid unless set forth in a written instrument signed by the party to be bound thereby.
Infrascale –
This Customer Agreement is entered into by Infrascale, Inc. (“Infrascale”) and the
person or entity agreeing to these terms (“You” or “Your”) and consists of (a) the
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terms contained herein, (b) the Additional Terms (as defined below), and (c) any
Infrascale Order (as defined below) (collectively, this “Agreement”). This Agreement
governs Your use of the Infrascale Service Offerings (as defined below). BY
EXECUTING AN INFRASCALE ORDER THAT REFERENCES THIS AGREEMENT, USING
INFRASCALE SERVICE OFFERINGS OR OTHERWISE INDICATING YOUR ACCEPTANCE
OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE
READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU
ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY
OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL
LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND (B) YOU
AGREE, ON BEHALF OF SUCH ENTITY, TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY
OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO
NOT EXECUTE AN INFRASCALE ORDER, CREATE AN ACCOUNT, USE THE INFRASCALE
SERVICE OFFERINGS OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS
AGREEMENT.
1. Definitions.
1.1. “Account Information” means information about You and Users that You
provide to Infrascale in connection with the creation or administration of Your
Account, and may include names, usernames, phone numbers, email addresses
and billing information associated with Your Account.
1.2. “Additional Terms” means the following terms and policies: Infrascale Terms of
Service, Privacy Policy, Service Level Agreement, Overage Billing Policy, Hardware
Warranty Policy (to the extent applicable), Statement of Support, Third Party
Terms and any other terms and conditions disclosed to You in an Order, if
applicable, through Your online account (“Account”) or in connection with accessing
any Services, each of which are hereby incorporated by reference.
1.3. “Brand Features” means the trade names, trademarks, service marks, logos,
domain names, and other distinctive brand features of each party, respectively, as
secured by such party from time to time.
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1.4. “Confidential Information” means all nonpublic information that one party or
its affiliate (the “Discloser”) discloses to the other party (the “Recipient”) under this
Agreement that is designated as confidential or that, given the nature of the
information or circumstances surrounding its disclosure, reasonably should be
understood to be confidential. Notwithstanding the foregoing, Infrascale
Confidential Information shall include (a) nonpublic information relating to the
technology, customers, pricing, product plans, marketing activities, finances and
other business affairs of Infrascale, its affiliates, suppliers, or licensors, (b) thirdparty
information that Infrascale is obligated to keep confidential, and (c) the
nature, content and existence of any discussions or negotiations between You and
Infrascale or its affiliates. Confidential Information does not include any information
that (i) is or becomes publicly available without breach of this Agreement, (ii) was
known to the Recipient at the time of the Recipient’s receipt hereunder, (iii) is
received from a third party who did not acquire or disclose the same by a wrongful
or tortious act, or (iv) is independently developed by the Recipient.
1.5. “Content” means software, data, text, files, audio, video or images.
1.6. “Documentation” means Services support material, if any, made available by
or on behalf of Infrascale, which may include product guides, manuals,
specifications, and knowledgebase articles, each as may be updated from time to
time.
1.7. “Fees” means (a) applicable fees for each Service as set forth in the Order or, if
an Order is not executed or the fees are not set forth in the Order, as set forth in
the then-current Infrascale price list, (b) applicable fees for Hardware, if any, (c)
applicable support fees, (d) transportation fees and related charges, (e) applicable
overage fees pursuant to the Overage Billing Policy, and (f) all additional fees as
mutually agreed upon by the parties.
1.8. “Hardware” means all computer and computer-related physical equipment, if
any, provided by Infrascale for use with the Services and/or Software.
1.9. “Indirect Taxes” means applicable taxes and duties, including, without
limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and
gross receipts tax.
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1.10. “Infrascale Content” means Content made available by or on behalf of
Infrascale in connection with the Services or on the Infrascale website at
http://infrascale.com (the “Site”) to allow access and use of the Services, including
without limitation APIs, Documentation, Creatives, software libraries, templates,
and other related technology.
1.11. “Losses” means any claims, damages, losses, liabilities, costs, and expenses
(including reasonable attorneys’ fees).
1.12 “Order” means (a) a written quote or other ordering document prepared by
Infrascale and either (i) executed by Your authorized representative, (ii) referenced
in a purchase order issued by You, or (iii) otherwise agreed to by Your authorized
representative; or (b) Your or a User’s registration for and/or enablement of the
applicable Services via Your Infrascale Dashboard. Your acceptance of a quote or
ordering document or registration for and enablement of Services in accordance
with any of the foregoing shall constitute Your execution of the Order for purposes
of this Agreement.
1.13. “Policies” means the Privacy Policy, Website Terms of Use, Terms of Service,
all restrictions described in the Infrascale Content, and any other policy or terms
referenced in or incorporated into this Agreement.
1.14. “Service” means each of the services made available by or on behalf of
Infrascale, including those services described in the Terms of Service. Services do
not include any Third-Party Product.
1.15. “Service Offerings” means the Services, Infrascale Content, Software,
Infrascale Brand Features, Hardware, and any other product or service provided by
or on behalf of Infrascale under this Agreement. Service Offerings do not include
any Third-Party Product.
1.16. “Service Term” or “Order Term” means, with respect to each subscription for
any Service, the Initial Service Term (as defined below) plus any Renewal Term(s) (as
defined below).
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1.17. “Software” means the software, if any, identified in an Order, as well as other
software made available to You hereunder by or on behalf of Infrascale, including
any applications, utility programs, and interfaces.
1.18. “Support” means the support services described in the Support Policies,
which support services are provided by or on behalf of Infrascale for the applicable
Services purchased by You.
1.19. “Support Policies” means the Service Level Agreement, Hardware Warranty
Policy, Statement of Support and any other support policies for Services located
at infrascale.com/legal.
1.20. “Suspend” or “Suspension” means disabling or limiting access or use of the
Service Offerings.
1.21. “Termination Date” means the effective date of termination provided in
accordance with Section 7, in a written notice from one party to the other.
1.22. “Third-Party Product” means any Content made available to You by any third
party on the Site or in conjunction with the Services, including any non-Infrascalebranded
software and services licensed to You pursuant to Third Party Terms.
Infrascale reserves the right to suspend or terminate any Third-Party Product at any
time. In the event of a conflict between these Terms and any Third Party Terms, the
Third Party Terms will prevail with respect to the Third-Party Product that is the
subject matter of such terms.
1.23. “Trial Service” shall have the meaning ascribed to such term in the Terms of
Service.
1.24. “User” means any individual or entity authorized by You or on Your behalf to
access or use Your Content or the Service Offerings under Your Account.
1.25. “Your Content” means all Content that You or any User (or Infrascale, when
acting on Your instructions) transfers to Infrascale for processing, storage, or
hosting by the Services in connection with Your Account. Your Content does not
include Account Information.
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2. Your Rights.
2.1. Training. Following Your purchase of a subscription to a Service, Infrascale will
provide You initial technical training with respect to such Service via webinar or as
otherwise agreed upon by Infrascale. After the initial technical training has been
completed, any further training may be provided by Infrascale for a fee.
2.2. Support. Subject to the terms and conditions of this Agreement, Infrascale will
provide Support to You for the Services in accordance with the then-current
Support Policy.
2.3. Advertising and Marketing. Infrascale may provide You access to the
Infrascale “Partner Resource Center”, which contains advertising and other creative
materials that promote the Services. Such materials may include Infrascale Brand
Features, Documentation, graphics, download buttons, banners, and related
materials (individually and collectively, “Creatives”). Subject to the terms and
conditions of this Agreement, You may use, reproduce, modify and/or distribute the
Creatives solely in connection with Your promotion of Services and strictly in
accordance with guidelines (if any) included in the Partner Resource Center. You
agree that You shall not modify, remove, or otherwise affect the Infrascale Brand
Features. You represent and warrant that any modifications made to the Creatives
by or on Your behalf shall not (a) infringe or misappropriate the intellectual
property rights of Infrascale or any third party, (b) portray the Service Offerings or
Infrascale in a false light, (c) contain any inaccurate statements or
misrepresentations regarding the Service Offerings or Infrascale, or (d) contain any
defamatory, scandalous, libelous, or unlawful matter.
3. Your Responsibilities.
3.1. Users. You are responsible for providing any necessary notices to Users and
for obtaining any legally required consents from Users concerning their use of the
Service Offerings. You will ensure that all Users comply with all terms and
conditions of this Agreement and that the terms of Your agreement with each User
are consistent with this Agreement. You will be deemed to have taken any action
that You permit, assist, or facilitate any person or entity to take related to this
Agreement, Your Content or use of the Service Offerings. You are responsible for
Users’ use of Your Content and the Service Offerings and are liable for Users’ acts
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and omissions. If You become aware of any violation by any User, You will
immediately suspend that User’s access to Your Content and the Service Offerings.
Infrascale is not obligated to provide Support to Users unless Infrascale has a
separate agreement with You or a User obligating us to provide such Support.
3.2. Representations and Warranties. You represent and warrant that (a) You
have full capacity, right and authority to enter into this Agreement, (b) You will
comply with all applicable laws in Your performance of this Agreement, (c) any
modifications of the Service Offerings made by You or on Your behalf shall not
infringe or misappropriate any intellectual property, proprietary, or other rights of
any third party, where such infringement or misappropriation would not have
occurred but for such modification(s), and (d) Your entry into this Agreement and
performance of Your obligations do not breach any of Your obligations to any third
party, or breach any contract, agreement, or order by which You are bound.
3.3. Insurance. For the Term of this Agreement, You shall maintain commercial
general liability insurance with limits of at least $1,000,000 per occurrence and an
annual aggregate of at least $2,000,000. Such insurance may not be changed or
cancelled without at least thirty (30) days’ prior written notice to Infrascale.
3.4. Non-Solicitation of Customers. Infrascale agrees that with respect to each of
Your customers who (a) purchases a subscription to an Infrascale Service from You,
and (b) continues to maintain an active subscription to such Service through You
(each, an “Infrascale Service Customer”), Infrascale will not knowingly sell any
Services to such Infrascale Service Customer other than through You; provided,
however, the foregoing obligation is strictly subject to Your provision of a current
and accurate Customer List (as defined below) to Infrascale in which the applicable
Infrascale Service Customer has been identified. The foregoing Infrascale obligation
shall not apply if (i) Infrascale was already in a contractual relationship with, or in
active negotiations towards a contractual relationship with, such Infrascale Service
Customer prior to You furnishing a Customer List with such Infrascale Service
Customer identified, or (ii) You are in breach of any term of this Agreement. A
“Customer List” shall mean a written notice to Infrascale that identifies those
current Infrascale Service Customers who satisfy the conditions described in (a) and
(b) above. For the avoidance of doubt, You are not required to provide a Customer
List to Infrascale, however the obligation of Infrascale set forth above shall apply
only with respect to those Infrascale Service Customers accurately identified on a
current Customer List. Except as expressly set forth in this Section, Infrascale
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retains the absolute and unrestricted right to market, distribute, sell and otherwise
transact in the Services through any third party or directly with any customer by
itself, without Your involvement or participation or any obligation to You in respect
thereof (including, without limitation, any payment obligation).
3.5. Hardware.
(a) Delivery; Loss. If You are entitled to receive Hardware for use in connection with
Infrascale Disaster Recovery (“IDR”) or Infrascale Backup & Disaster Recovery
(“IBDR”) , delivery of the Hardware shall be made DAP (Delivered at Place,
Incoterms® 2020) at Your designated facility (the “Designated Facility”) in
accordance with the delivery schedule mutually agreed upon by the parties. Unless
expressly agreed to otherwise, You are responsible for and shall pay all
transportation fees as specified in the Order, as well as all duty, customs clearance
and other charges related to delivery to an international destination. You will
ensure that You have all necessary rights, certifications, and licenses for the
delivery, installation, maintenance, use, and removal of the Hardware at the
Designated Facility. From the time the Hardware is delivered to Your Designated
Facility until its return to us, You are responsible for any loss, theft, damage to, or
destruction of the Hardware, except to the extent caused by us. If You breach these
Terms, we may terminate Your and Your User’s right to use the Hardware and we
may remove the Hardware.
(b) Title. Except as otherwise expressly agreed in writing by us, (i) we will make
Hardware available to You to support Your or Your User’s use of the IDR or IBDR
Service, (ii) Infrascale and/or its suppliers are the owner of the Hardware and will
retain title thereto; and (iii) You will not, and will not purport to, assign, grant, or
transfer the Hardware or any interest in the Hardware to any individual or entity,
and any such purported assignment, grant, or transfer is void.
(c) Installation; Customization. We will reasonably assist You with the installation of
the Hardware on a mutually agreeable date. Except as expressly set forth in an
Order, all branding requests, integration, API development and non-standard
deployments which require any custom engineering work by us will be quoted
separately and subject to a separate agreement between You and us.
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(d) Facility Assessment. You will ensure that the Designated Facility at which the
Hardware is located meets the minimum requirements reasonably necessary to
support the installation, maintenance, use, and removal of the Hardware.
(e) Access to Hardware. You will ensure that personnel designated by Infrascale are
provided prompt and reasonable access to the Designated Facility as necessary to
deliver, install, inspect, maintain, and remove the Hardware. You will not require the
designated personnel to sign, accept, or otherwise agree to any documentation as a
condition of accessing the Designated Facility (other than a standard visitor’s log),
and You agree that the terms of any such documentation are void even if signed by
the designated personnel. You will ensure that no one modifies, alters, reverse
engineers, or tampers with the Hardware, and that no one accesses, moves, or
repairs the Hardware other than (i) personnel designated by us, (ii) as permitted in
writing by us in connection with the maintenance of Hardware, or (iii) as necessary
due to a situation involving imminent injury, damage to property, or an active fire
alarm system. You acknowledge that the Hardware may be equipped with tamper
monitoring.
(f) Services and Security. There are inherent differences between Services running
on Hardware at Your Designated Facility and those Services running at Infrascale
operated facilities, since the Hardware is physically located at the Designated
Facility where You are responsible for physical security and access controls, as well
as all power, networking, and environmental conditions. Due to these differences,
any Infrascale obligations or commitments in these Terms that depend on our
operation of physical security and access controls, or power, networking, or
environmental conditions, do not apply to Hardware or any IDR or IBDR Services
running on Hardware not located at an Infrascale operated facility.
(g) Import/Export. You are responsible for complying with all applicable import, reimport,
export, and re-export control laws with respect to the Hardware and any
included Software, including any applicable license requirements and countryspecific
sanctions programs. You are responsible for serving as the exporter and
importer of record (as applicable) for the Hardware, and You accept that we will not
participate in the export or import procedure.
4. Ordering And Payment Terms.
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4.1. Purchases. You may purchase a subscription for the right to access and use
the Service Offerings by entering into an Order with Infrascale. Purchase of a
subscription to the Service Offerings includes Your right to access applicable
Support during the Service Term.
4.2. Payment. Your right to access and use the Service Offerings is subject to Your
timely payment of Fees. Following each billing period, Infrascale will issue an invoice
to You for Fees due based on (a) Your purchase of Services (for those Services not
provided under a consumption-based license model), (b) Your and Users’ use of
consumption-based Services during the previous billing period, (c) Your and Users’
excess usage of the Services pursuant to the Overage Billing Policy, and (d) any
other fees due hereunder. Overage fees due pursuant to the Overage Billing Policy
will be invoiced in arrears. Payment shall be made by debit card, credit card, or
ACH/direct debit. You authorize Infrascale to charge Your payment method for all
amounts due under this Agreement. If You purchase a multi-year subscription or a
multi-year renewal for any Service, Your purchase is for the full value of all years of
the subscription, even if the required payments are made in installments (e.g.,
monthly or annually). Except as otherwise provided in this Agreement or applicable
law, Your obligation to pay all Fees is non-cancellable and the measurement by
Infrascale of Your and Users’ use of consumption-based Services and excess usage
of any Service is final. All Fees will be paid to Infrascale without setoff or
counterclaim and are non-refundable.
4.3. Delinquent Payments. If any payment is more than thirty (30) days past due
(including if payment is late due to a credit card expiration or chargeback or
insufficient funds), Infrascale may, without limiting any remedies available to it
hereunder and notwithstanding the opportunity to cure set forth in Section 7.2, (a)
Suspend all or part of Your and Users’ use of the Service Offerings until payment is
made current, or (b) immediately terminate this Agreement and/or any specific
Order(s) for breach. Infrascale may charge You interest at the rate of 1.5% per
month (or the highest rate permitted by law, if less) on all late payments. You are
responsible for any and all costs of collection incurred by Infrascale in collecting
such late or past due payments, including reasonable attorney’s fees and litigation
costs.
4.4. Taxes. Each party will be responsible, as required under applicable law, for
identifying and paying all taxes and other governmental fees and charges (and any
penalties, interest, and other additions thereto) that are imposed on that party
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upon or with respect to the transactions and payments under this Agreement. All
Fees payable by You are exclusive of Indirect Taxes. Infrascale may charge and You
will pay applicable Indirect Taxes that Infrascale is legally obligated or authorized to
collect from You. You will provide such information to Infrascale as reasonably
required to determine whether Infrascale is obligated to collect Indirect Taxes from
You. Infrascale will not collect, and You will not pay, any Indirect Tax for which You
furnish us a properly completed exemption certificate or a direct payment permit
certificate for which Infrascale may claim an available exemption from such Indirect
Tax. All payments made by You to Infrascale under this Agreement will be made
free and clear of any deduction or withholding, as may be required by law. If any
such deduction or withholding (including but not limited to cross-border
withholding taxes) is required on any payment, You will pay such additional
amounts as are necessary so that the net amount received by Infrascale is equal to
the amount then due and payable under this Agreement. Infrascale will provide You
with such tax forms as are reasonably requested in order to reduce or eliminate the
amount of any withholding or deduction for taxes in respect of payments made
under this Agreement.
4.5. Invoice Disputes & Refunds. You must submit any invoice disputes prior to
the payment due date. If the parties determine that certain billing inaccuracies are
attributable to Infrascale, Infrascale will not issue a corrected invoice, but will
instead issue a credit memo specifying the incorrect amount in the affected invoice.
If the disputed invoice has not yet been paid, Infrascale will apply the credit memo
amount to the disputed invoice, and You will be responsible for paying the resulting
net balance due on that invoice. To the fullest extent permitted by law, You waive all
claims relating to Fees unless claimed within sixty (60) days after charged (this does
not affect any of Your rights with Your credit card issuer).
4.6. Overages. The Services are subject to usage limits specified in this Agreement,
the Order, and the Overage Billing Policy. You acknowledge that use of the Services
in excess of the usage limits may result in additional fees and agree to pay such
fees in accordance with the Overage Billing Policy.
4.7. Initial Service Term and Renewals. Your subscription will be in effect for the
initial service term identified on the Order or selected in Your Account, as applicable
(the “Initial Service Term”). Your subscription (including subscriptions for
consumption-based services) is auto-renewing, and Your purchase constitutes Your
agreement to the auto-renewal of Your subscription for successive one (1) year
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terms, provided that if the Initial Service Term of Your subscription is monthly, the
subscription shall auto-renew for successive one (1) month terms (each term of a
renewal, the “Renewal Term”). Notwithstanding the foregoing, Infrascale may
impose limits on the number of Renewal Terms for certain subscriptions based on
the age of the Hardware or other factors. You maintain the right to give email notice
of non-renewal to Infrascale at support@infrascale.com at least thirty (30) days
prior to the end of the then-current term. Each consumption model invoice shall
constitute an auto-renewal notice under consumption models. All Orders, including
for renewals, are subject to acceptance by Infrascale in its discretion.
5. Confidential Information.
5.1. Obligations. The Recipient shall maintain the confidentiality of the Discloser’s
Confidential Information with at least the same degree of care that it uses to
protect its own confidential and proprietary information, but no less than a
reasonable degree of care under the circumstances. The Recipient shall not use the
Discloser’s Confidential Information for any purpose except as required or
necessary for performance of this Agreement. Without limiting the foregoing, the
Recipient will not disclose the Discloser’s Confidential Information except to
affiliates, employees, agents, or professional advisors who need to know it and who
have agreed in writing (or in the case of professional advisors are otherwise bound)
to maintain its confidentiality on terms at least as restrictive as those contained
herein. The Recipient will ensure that those people and entities use the Discloser’s
Confidential Information only to exercise rights and fulfill obligations under this
Agreement. The Recipient shall promptly return to the Discloser, or destroy, as the
case may be, the Discloser’s Confidential Information following the termination or
expiration of this Agreement or earlier upon written request of the Discloser.
5.2. Required Disclosure. Notwithstanding any provision to the contrary in this
Agreement, the Recipient may also disclose the Discloser’s Confidential Information
to the extent required by a government body, court of law, or other valid legal
authority provided that the Recipient uses commercially reasonable efforts to: (a)
promptly notify the Discloser in advance of such disclosure, and (b) comply with the
Discloser’s reasonable requests regarding its efforts to oppose the disclosure.
Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the
Recipient determines that complying with (a) and (b) could (i) result in a violation of
the legal order requiring disclosure, and/or (ii) obstruct a governmental
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investigation. As between the parties, You are responsible for responding to all
third-party requests concerning Your and Users’ use of the Service Offerings.
6. Suspension.
6.1. Generally. Infrascale may Suspend Your or any User’s right to access or use all
or any portion of the Service Offerings if Infrascale determines:
(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the
Service Offerings or any third party, (ii) could adversely impact Infrascale systems,
the Service Offerings, or the systems or Content of any other Infrascale customer,
(iii) could subject Infrascale, its affiliates, or any third party to liability, or (iv) could
be fraudulent;
(b) You or any User is in breach of this Agreement, or any User is in breach of the
Terms of Service or other applicable terms;
(c) You fail to take necessary actions as described in the Terms of Service;
(d) It is required to Suspend to comply with applicable law;
(e) You have ceased to operate in the ordinary course, made an assignment for the
benefit of creditors or similar disposition of Your assets, or become the subject of
any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(f) Infrascale wishes to Suspend a Trial Service pursuant to the Terms of Service.
Infrascale will eliminate any such Suspension once the circumstances giving rise to
the Suspension have been resolved. At Your request, unless prohibited by
applicable law, Infrascale will notify You of the basis for the Suspension as soon as
is reasonably possible.
6.2. Effect of Suspension. If Infrascale Suspends Your or any User’s right to access
or use all or any portion of the Service Offerings:
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(a) You remain responsible for all Fees and charges You incur during the period of
Suspension; and
(b) You will not be entitled to any service credits under the Service Level Agreement
for any period of Suspension.
7. Term; Termination.
7.1. Term. This Agreement will become effective upon the earlier of (a) Your
execution of an Order, (b) Your or any User’s use of any Service, or (c) when You
indicate Your acceptance of this Agreement (during Account creation or otherwise)
and, unless earlier terminated in accordance with the terms of this Agreement, will
remain in effect until the date on which Your last active subscription to a Service
expires. Any notice of termination of this Agreement by either party to the other
must include a Termination Date that complies with the notice periods in Section
7.2.
7.2. Termination for Cause.
(a) By Either Party. Either party may terminate this Agreement for cause if the other
party is in material breach of this Agreement and, to the extent curable (other than
a default in payment), such material breach remains uncured for a period of thirty
(30) days from receipt of written notice by the other party.
(b) By Infrascale. Infrascale may also terminate this Agreement immediately upon
notice to You for cause (i) if Infrascale has the right to Suspend under Section 6.1(ae),
(ii) if the agreement between Infrascale and a third-party partner who provides
software or other technology Infrascale uses to provide the Service Offerings
expires, terminates, or requires Infrascale to change the way it provides the
software or other technology as part of the Services, or (iii) in order to comply with
applicable law or requests of governmental entities.
7.3. Effect of Termination.
(a) Service Term. Upon expiration or termination of a Service Term:
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(i) all of Your and Users’ rights under the specific Order terminate immediately, and
You and Users will not be able to access Your Content provided in connection with
the specific Order except as expressly set forth in Section 7.3(c);
(ii) You remain responsible for all Fees and charges You have incurred under the
specific Order through the date of expiration or termination of such Order and are
responsible for any Fees and charges You incur during the post-termination period
described in Section 7.3(c); and
(iii) You will immediately obtain possession of all Hardware provided under the
specific Order by or on behalf of Infrascale (whether provided to You or Users) and
return such Hardware, along with all accessories, to Infrascale in the same
condition as that in which it was provided (less reasonable wear and tear). In the
event the Hardware is not immediately returned in the above-described condition,
You agree You shall promptly pay to Infrascale the actual cost of the Hardware less
Depreciation. “Depreciation” shall be calculated by multiplying the actual cost of the
Hardware on the date of delivery by the Decline in Value, where the “Decline in
Value” is equivalent to twenty-five percent (25%) per full year of Your Service Term
for each of the first three (3) years following delivery of such Hardware, not to
exceed seventy-five percent (75%). By way of example only, if Hardware is delivered
on June 1, 2021 and returned to Infrascale on March 1, 2023, the Depreciation for
such Hardware shall be calculated by multiplying the actual cost for such Hardware
by twenty-five percent (25%).
(b) Agreement. Upon termination of this Agreement:
(i) You will immediately return or, if instructed by Infrascale, destroy all Infrascale
Content in Your possession and cause all Users to do the same;
(ii) upon request, each party will return or destroy all Confidential Information of
the other party; and
(iii) the following Sections shall survive termination: Sections 1, 3.2, 3.5 (a-b), 4.2-4.6,
5, 7.3, and 8 through 11.
(c) Post-Termination. Unless Infrascale terminates a specific Order or this
Agreement for cause, during the forty-five (45) days immediately following
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termination of the specific Order or this Agreement, whichever occurs first (the
“Retrieval Period”), Infrascale will not take action to remove any of Your Content
from the Infrascale systems as a result of the termination and will allow You to
retrieve Your Content from the specific Services; provided, the Retrieval Period for
Infrascale Cloud Application Backup (“ICAB”) shall be five (5) days following
termination of the ICAB Service Terms. Infrascale is not responsible for the
availability or accessibility of Your Content following the expiration of the Retrieval
Period. You’re solely responsible for managing the download of Your and Your end
users’ Content, and Infrascale will have no liability if You fail to download such
Content prior to termination or during the Retrieval Period.
For clarity, termination of this Agreement also results in the termination of all
Orders. Further, termination or expiration of this Agreement or any Order(s) will not
release You from the obligation to make payment of all amounts accrued or due
and payable to Infrascale under the specific Order(s) prior to the effective date of
termination or expiration, and upon termination for any reason other than due to
an uncured breach by Infrascale, all future amounts due under all terminated
Orders shall be accelerated and become due and payable immediately (including
amounts due for all years of a multi-year subscription or multi-year renewal),
regardless of whether previously invoiced. For any use of the Services after
termination of the specific Order, the terms of this Agreement will apply and You
agree to pay the Fees applicable to such use except solely with respect to Your
authorized access to download Your Content under such specific Order.
8. Disclaimers.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY
PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE”
BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) INFRASCALE, ITS
AFFILIATES, SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND
SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT
LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND QUIET
ENJOYMENT, AND (II) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR
USAGE OF TRADE, (C) INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS ARE
NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY
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CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED
THROUGH USE OF THE SERVICES, (D) YOU AND USERS ARE SOLELY RESPONSIBLE
FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) INFRASCALE, ITS
AFFILIATES, SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE SERVICE
OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE,
ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE
OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH
DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. THE SERVICE
OFFERINGS AND THIRD-PARTY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR
HIGH-RISK ACTIVITIES. IN NO EVENT WILL INFRASCALE, ITS AFFILIATES, SUPPLIERS,
OR LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES, OR CLAIMS RELATED
TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO
YOUR CONTENT. YOU ACKNOWLEDGE THAT INFRASCALE, ITS AFFILIATES,
SUPPLIERS AND LICENSORS DO NOT CONTROL THE TRANSFER OF DATA OVER
COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE
OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS,
DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH
COMMUNICATIONS FACILITIES. INFRASCALE, ITS AFFILIATES, SUPPLIERS AND
LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR
OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9. Limitation Of Liability.
INFRASCALE, ITS AFFILIATES, SUPPLIERS AND LICENSORS WILL NOT BE LIABLE TO
YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR
LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR
DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE
OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER
THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT
SATISFY A REMEDY. FURTHER, NEITHER INFRASCALE NOR ANY OF ITS AFFILIATES,
SUPPLIERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION,
REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY
USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS,
INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS
AGREEMENT OR AN ORDER, OR YOUR OR ANY USERS’ ACCESS OR USE OF THE
SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, (II) DISCONTINUATION OF ANY
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OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS
UNDER THE SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED
DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON,
(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY
INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH
THIS AGREEMENT OR YOUR OR ANY USERS’ ACCESS OR USE OF THE SERVICE
OFFERINGS, OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE
DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR
CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS
UNDER SECTION 10.2, THE AGGREGATE LIABILITY OF INFRASCALE, ITS AFFILIATES,
SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WILL NOT EXCEED THE
AMOUNT YOU ACTUALLY PAY INFRASCALE UNDER THIS AGREEMENT FOR THE
SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS
BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 9 APPLY ONLY TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Indemnification.
10.1. General. You will defend, indemnify, and hold harmless Infrascale, its
affiliates, suppliers and licensors, and each of their respective employees, officers,
directors, and representatives (collectively, the “Infrascale Indemnified Parties”)
from and against any Losses arising out of or relating to any third-party claim
concerning (a) Your or any Users’ access or use of the Service Offerings (including
any activities under Your Account and use by Your employees and personnel), (b)
breach of this Agreement or violation of applicable law by You, Users, or Your
Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any
User. You will reimburse Infrascale for reasonable attorneys’ fees, as well as its
employees’ and contractors’ time and materials spent responding to any third-party
subpoena or other compulsory legal order or process associated with third-party
claims described in (a) through (c) above at its then-current rates.
10.2. Intellectual Property.
(a) Infrascale will defend You and Your employees, officers, and directors
(collectively, “Your Indemnified Parties”) against any third-party claim to the extent
based solely on an allegation that the Services or Infrascale Brand Features infringe
or misappropriate that third party’s intellectual property rights and will pay the
amount of any adverse final judgment or settlement. Notwithstanding the
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foregoing, Infrascale will have no obligations or liability under this Section or
otherwise with respect to any claim or award to the extent arising from (i) a
combination of the Services or Infrascale Brand Features with any other product,
service, software, data, method, or content, including Your Content, (ii) use of the
Services for a purpose or in a manner not permitted by this Agreement, or in a
manner for which the Services were not designed, (iii) any modification of the
Services or Infrascale Brand Features made without express written approval by
Infrascale, (iv) Your or any Users’ use of non-current or unsupported versions of the
Services or Infrascale Brand Features, (v) breach of this Agreement by any of Your
Indemnified Parties, or (vi) any Trial Service. In addition, Infrascale will have no
obligations or liability arising from Your or any User’s use of the Services after
Infrascale has notified You to discontinue such use.
(b) You will defend and indemnify the Infrascale Indemnified Parties against any
third-party claim alleging that any of Your Content or Your Brand Features infringes
or misappropriates that third party’s intellectual property rights, and will pay the
amount of any adverse final judgment or settlement.
(c) If the Services become, or in the opinion of Infrascale may become, the subject
of a third-party infringement or misappropriation claim, then Infrascale may, at its
sole option and expense (i) procure the right for You to continue using the Services,
(ii) modify the Services to make them non-infringing without materially reducing
their functionality, or (iii) replace the Services with a non-infringing, functionally
equivalent alternative. If Infrascale believes none of the foregoing remedies are
commercially reasonable, then Infrascale may Suspend or terminate Your and all
Users’ right to access and use the impacted Services. In the event of termination,
Infrascale will refund any pre-paid Fees (less any discounts provided and without
consideration of any prepayment discount applied) for the Services pro-rated for
the remaining Service Term.
(d) The remedies provided in this Section 10.2 are the sole and exclusive remedies
for any third-party claims of infringement or misappropriation of intellectual
property rights by the Services, either party’s Brand Features, or Your Content.
10.3. Process. The obligations under this Section 10 will apply only if the party
seeking defense or indemnity (the “Indemnified Party”) (a) provides the other party
(the “Indemnifying Party”) prompt written notice of the claim, (b) provides the
Indemnifying Party with sole control over the defense and settlement of the claim,
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and (c) reasonably cooperates with the Indemnifying Party (at the Indemnifying
Party’s expense) in the defense and settlement of the claim. In no event will the
Indemnifying Party agree to any settlement of any claim that requires the
Indemnified Party to admit liability or pay money without the prior written consent
of the Indemnified Party, which consent will not be unreasonably withheld,
conditioned, or delayed.
10.4. Indemnity for Third-Party Products. To the extent required or permitted
by agreements between Infrascale and the providers of Third-Party Products,
Infrascale will pass through to You rights to indemnification received with respect to
Third-Party Products, if any. Notwithstanding the foregoing, You acknowledge that
Infrascale is not responsible for the fulfillment of any Third-Party Product
indemnities or for issues attributable to use of Third-Party Products.
11. General Provisions.
11.1. Publicity. Infrascale may use Your name and logo on the Site and marketing
materials solely to identify You as an Infrascale customer and provided such use
does not reveal any of Your Confidential Information.
11.2. Disputes.
(a) Generally. Notwithstanding any other provisions in this Agreement, and except
as otherwise set forth in this Section, if either You or Infrascale has any dispute,
controversy, or claim, whether founded in contract, tort, statutory, or common law,
concerning, arising out of, or relating to this Agreement or the Service Offerings,
including any claim regarding the applicability, interpretation, enforceability, scope,
validity, or formation of this arbitration clause and/or this Agreement (each of the
foregoing, a “Legal Claim”) that cannot be resolved directly between You and
Infrascale, then such Legal Claim will be settled by confidential, binding arbitration
administered by the American Arbitration Association (“AAA”) in accordance with
the then-current Commercial Arbitration Rules of the AAA (the “AAA Rules”). The
award of the arbitrator shall be accompanied by a reasoned opinion. Judgement on
the award may be entered in any court of competent jurisdiction. Except as may be
required by law, neither a party nor an arbitrator may disclose the existence,
content, or results of any arbitration hereunder without the prior written consent of
both parties. The arbitrator shall award to the prevailing party, if any, the costs and
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attorneys’ fees reasonably incurred by the prevailing party in connection with the
arbitration. This Section shall not preclude either party from seeking (i) equitable
relief in accordance with the Terms of Service; or (ii) relief from a small claims court
for disputes or claims within the scope of such court’s jurisdiction.
(b) Process. To initiate an arbitration proceeding, an arbitration claim must be
submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for
Arbitration must be provided to the other party (the “Opposing Party”), pursuant to
the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any
other location that is mutually agreed upon by You and Infrascale. A single
arbitrator will be mutually selected by You and Infrascale and shall be (i) a practicing
attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from
the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a
background in finance, technology, and/or online commerce law (or if there are no
such arbitrators, then from the arbitrators on the AAA’s roster of commercial
dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and
Infrascale cannot mutually agree upon an arbitrator within ten (10) days of the
Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the
AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The
arbitrator will follow the law and will give effect to any applicable statutes of
limitation. Payment of filing, administration and arbitrator fees will be governed by
the AAA’s rules.
11.3. Governing Law. Except as otherwise expressly provided herein, all claims
shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United
Nations Convention on Contracts for the International Sale of Goods does not apply
to this Agreement. The courts in some countries will not apply U.S. law to some
types of disputes. If You reside in one of those countries, then where U.S. law is
excluded from applying, the laws of Your country of residence will apply.
11.4. Modifications. Infrascale may modify this Agreement at any time, in our sole
discretion. If we make any material modifications to this Agreement, we shall
inform You by posting the modified terms
at https://www.infrascale.com/legal/customer-agreement/. It is Your responsibility
to check periodically for modifications to this Agreement. The modified Agreement
will be effective upon Your next subscription renewal following posting of the
updated terms. Your continued access or use of the Service Offerings after such
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renewal confirms Your consent to be bound by this Agreement, as amended. If You
do not agree to be bound by the modified terms, then You may not continue to use
the Service Offerings.
11.5. Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous communications, representations, warranties,
proposals, negotiations, discussions, understandings, or agreements (whether oral,
written, implied, or otherwise) between the parties with respect to the subject
matter hereof. In entering into this Agreement, neither party has relied on, and
neither party will have any right or remedy based on, any statement,
representation, or warranty, except those expressly set out in this Agreement. The
terms located at any URL referenced in this Agreement and an Order are
incorporated by reference into this Agreement. After this Agreement is effective,
Infrascale may provide an updated URL in place of any URL in this Agreement. If
there is a conflict between the documents that make up this Agreement, the
documents will control in the following order: the Order, the terms at any URL, and
this Agreement. Any additional or conflicting terms contained in any purchase
order, proposal, or other document provided by You shall be deemed rejected by
Infrascale without need of further notice of objection, even if such document is
acknowledged or accepted by Infrascale, and regardless of any statement to the
contrary which may be contained therein, and shall be of no effect or in any way
binding upon Infrascale. Except as otherwise expressly set forth herein, any
amendment to this Agreement must be in writing, signed by both parties, and
expressly state that it is amending this Agreement.
11.6. Third-Party Beneficiaries. Infrascale shall be a third-party beneficiary of any
contract between You and Users with respect to the Service Offerings, and shall be
entitled to enforce the obligations therein. Other than as expressly provided herein,
no third-party beneficiaries are intended or will be construed as created by this
Agreement.
11.7. Notices.
(a) To You. Infrascale may provide any notice to You under this Agreement by (i)
posting a notice on the Infrascale Site or Dashboard, or (ii) sending a message to
the email address then associated with Your Account. Notice Infrascale provides by
posting on the Infrascale Site or Dashboard will be effective upon posting and
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notice Infrascale provides by email will be effective when the email is sent. It is Your
responsibility to keep Your email address current. You will be deemed to have
received any email sent to the email address then associated with Your Account
when Infrascale sends the email, whether or not You actually receive the email.
(b) To Infrascale. To provide Infrascale notice under this Agreement, You must do so
via personal delivery, overnight courier or registered or certified mail to Infrascale,
Inc., 12110 Sunset Hills Road, Suite 600, Reston, VA 20190, Attention: Legal
Department. Infrascale may update its address for notice by providing notice of
such change pursuant to subsection (a) above. Notice provided by personal delivery
will be effective immediately. Notice provided by overnight courier will be effective
one (1) business day after it is sent. Notice provided registered or certified mail will
be effective three (3) business days after it is sent.
11.8. Trade Compliance. In connection with this Agreement, each party will
comply with all applicable import, re-import, sanctions, anti-boycott, export, and reexport
control laws and regulations, including all such laws and regulations that
apply to a U.S. company, such as the Export Administration Regulations, the
International Traffic in Arms Regulations, and economic sanctions programs
implemented by the Office of Foreign Assets Control. For clarity, You are solely
responsible for compliance related to the manner in which You choose to use the
Service Offerings, including Your transfer and processing of Your Content, the
provision of Your Content to Users, and the geographic region in which any of the
foregoing occur. You represent and warrant that You and any party that owns or
controls You are not subject to sanctions or otherwise designated on any list of
prohibited or restricted parties, including but not limited to the lists maintained by
the United Nations Security Council, the U.S. Government (e.g., the Specially
Designated Nationals List and Foreign Sanctions Evaders List of the U.S.
Department of Treasury, and the Entity List of the U.S. Department of Commerce),
the European Union or its Member States, or other applicable government
authority.
11.9. U.S. Government Rights. The Service Offerings are provided to the U.S.
Government as “commercial items,” “commercial computer software,” “commercial
computer software documentation,” and “technical data” with the same rights and
restrictions generally applicable to the Service Offerings. If You are using the Service
Offerings on behalf of the U.S. Government and these terms fail to meet the U.S.
Government’s needs or are inconsistent in any respect with Federal law, You will
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immediately discontinue Your use of the Service Offerings. The terms “commercial
item” “commercial computer software,” “commercial computer software
documentation,” and “technical data” are defined in the Federal Acquisition
Regulation and the Defense Federal Acquisition Regulation Supplement.
11.10. Questions. If You have any questions regarding this Agreement, please
contact Infrascale at legal@infrascale.com.
Tulsa Connect –
Terms and Conditions of Private Cloud Hosting Service
I. Private Cloud Host Management. Private Cloud host servers provided by TC are managed to the
extent
detailed below. Every Private Cloud host server includes basic managed services including initial
operating
system / hypervisor installation, hardware maintenance when required, basic monitoring, basic
troubleshooting
support for the operating system / hypervisor, patch management for the host (pursuant to an established
maintenance schedule), and remote reboot services. Additional managed services may be provided as
outlined
in the Private Cloud Hosting Order Form.
a. Operating system / hypervisor setup and testing – TC will perform a standard operating system /
hypervisor installation and test the configuration of that installation.
b. Hardware maintenance – TC will provide hardware replacements for failed components on TC
provided hardware at no charge under the provisions of the applicable policies of the hardware vendor.
Any operating system / hypervisor reinstallation required due to failed hardware replacement will be
performed at no charge. Please see the section entitled “Backup and data recovery” for information on
data recovery after any required system reinstallation.
c. Basic monitoring – Private Cloud host servers will be monitored by TC monitoring systems. By
default, a server will be queried to determine up/down status via ICMP ping or other method.
Notifications of failed tests may optionally be sent to an E-mail address provided by the Customer. In
addition, notifications will be dispatched to TC support personnel in the event of a service failure.
d. Backup and data recovery – TC recommends the nightly backup of all critical Customer data. If
backups are performed by TC as part of this Service Agreement and a restore is necessary, TC will
make commercially reasonable efforts to restore Customer data from the latest full backup, but does
not warrant that any such restoration will be successful, complete or accurate. Customer assumes all
liability associated with backup and data recovery and acknowledges that it is not relying on TC for
providing redundancy. As with all data processes, TC cannot guarantee the viability or availability of
any backup performed via automated or manual processes.
II. TC Chargeable Services
a. All services provided outside the scope of this Service Agreement are chargeable to the Customer.
These out of scope services include software installation or configuration not included in this Service
Agreement, or additional hardware that is requested to be installed in the Private Cloud host server.
b. All such additional services will be billed at our then-current hourly rates. Emergency service after
hours
required for any reason other than failure of hardware or basic TC infrastructure may result in premium
service charges. All such premium charges will be communicated to the Customer prior to performing
the service.
III. Software Installation, Licensing, and Usage Compliance
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a. Software Installation – With the exception of software provided by TC as part of this Service
Agreement, Customer is responsible for the procurement and installation of all software installed on
Customer Private Cloud infrastructure.
b. Software Licensing and Usage – Customer is responsible for complying with the software licensing
and usage agreements for all software installed on Customer Private Cloud host servers and
associated virtual machines (VMs), including but not limited to, those set forth by the software vendor.
Customer is liable for payment of all fines and/or penalties assessed against it or against TC for
violation of any software licensing or usage agreements with respect to software installed on Customer
Private Cloud host servers and associated VMs.
IV. Server Security
a. Host Servers – TC maintains reasonable security practices for software on the Private Cloud host
servers. TC performs security patch management, updates, and configuration changes for the Private
Cloud host servers in accordance with industry best practices. TC will schedule these activities with
Customer to minimize impact on uptime of the environment.
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b. Virtual Machines
i. Security Practices – Customer must maintain reasonable security practices for the software
services running on Customer Private Cloud VMs. Unless otherwise specified in this Service
Agreement, Customer is responsible for applying all security patches, updates, and
configuration changes within the VMs in accordance with industry best practices to maintain
proper security. Without limiting the foregoing, Customer will immediately respond to any
remotely exploitable flaws that will grant unauthorized administrative access to Customer
infrastructure to ensure that the environment is not compromised. If TC attempts to contact
the Customer regarding any such security issues and receives no response, TC reserves the
right, without obligation or liability of any kind, to apply all patches/remedies which in its
discretion TC determines necessary or appropriate to mitigate such security issues whenever
TC deems it necessary, including, without limitation, during Customer’s regular business
hours.
ii. Compliance – Customer is responsible for complying with applicable security and privacy
laws and regulations related to the software services running on Customer Private Cloud
VMs.
iii. Monitoring – Unless security monitoring service is specifically contracted in this Service
Agreement, the Customer is solely responsible for monitoring security issues for the software
services running on Customer Private Cloud VMs. While TC may, as a courtesy, provide
security and vulnerability alerts from time to time, the Customer is solely responsible for
obtaining and responding to security updates for the services it provides.
c. Definition – As used in this Service Agreement, “reasonable security practices” include, without
limitation, access controls, harm detection, security auditing, physical protections, maintenance of
privacy and confidentiality, and recovery plans.
d. Security Compromise – If a security compromise is either suspected or detected, Customer must
contact TC support immediately for threat assessment. Customer must provide TC support with all
requested information about the potential or actual security compromise, including without limitation, the
number of individuals whose information was impacted, organized by state of residency, how and when
the Customer became aware of the security compromise, and the steps taken to remediate the issue.
V. Service Level Commitment
a. TC will use commercially reasonable effort to make the Private Cloud Services available to Customer at
all times. If the Services are unavailable to Customer, Customer: (i) must contact TC and outline service
deficiency with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service
deficiency; and (iii) may request a credit as provided in Section C below.
b. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may
terminate any affected component of this Service Agreement, without liability, by giving written notice to
TC.
c. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will
issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee
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paid by Customer, for each 4 hour period in any day that such outages occurs during a particular month.
In no case will the total credit issued exceed the Customer’s monthly services fee.
i. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation,
acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other
labor disturbance, interruption of or delay in transportation, unavailability of or interruption or
delay in telecommunications or third party services, failure of third party software; (2) failure of
access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled
and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the
direct control of TC.
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Terms and Conditions of Co-Location Service
VI. Software Installation, Licensing, and Usage Compliance
a. Software Installation – With the exception of software provided by TC to Customer under the
Agreement or pursuant to an agreement contemplated thereby, Customer is solely responsible for the
procurement and installation of all software installed on Customer equipment.
b. Software Licensing and Usage – Customer is responsible for complying with the software licensing
and usage agreements for all software installed on Customer equipment including, without limitation,
those set forth in the Agreement and those required by Customer’s software vendor. Customer is liable
for payment of all fines and/or penalties assessed against it or against TC for violation of any software
licensing or usage agreements with respect to software installed on Customer equipment.
VII. Server Security
a. Unless security monitoring service is specifically contracted in a separate agreement between
Customer and TC, the Customer is solely responsible for monitoring security issues for the software
services running on Customer equipment. While TC may, as a courtesy and without further obligation or
liability, provide security and vulnerability alerts from time to time, the Customer is solely responsible for
obtaining, implementing, applying and responding to security updates for the services it provides.
b. Customer must maintain reasonable security practices for the software services running on Customer
equipment. Customer is also responsible for complying with all applicable security and privacy laws and
regulations related to the security of the software services running on Customer equipment, including all
Compliance Standards. “Reasonable security practices” the Customer must maintain for software
services running on Customer equipment include, without limitation, access controls, harm detection,
security auditing, maintenance of privacy and confidentiality, and recovery plans.
c. If a security compromise is either suspected or detected, Customer must contact TC support
immediately for threat assessment. Customer must provide TC support with all requested information
about the potential or actual security compromise, including without limitation, the number of individuals
whose information was impacted organized by state of residency, how and when the Customer became
aware of the security compromise, and the steps taken to remediate the issue.
VIII. Service Level Commitment
d. TC will use its reasonable commercial efforts to make the Services available to Customer at all times. If
the Services are unavailable to Customer, Customer: (i) must contact TC and outline service deficiency
with supporting data; (ii) must allow TC a reasonable amount of time to cure alleged service deficiency;
and (iii) may request a credit as provided in Section C below.
e. If after 30 days TC has failed to correct a mutually recognized service deficiency, Customer may
terminate any affected component of this Service Agreement, without liability, except for payment of all
amounts otherwise due to TC hereunder and under the Agreement by giving written notice to TC.
f. Credit for Service Interruption – Subject to the below Exceptions, upon Customer’s request, TC will
issue a credit to Customer for outages in an amount equal to one day’s worth of the monthly services fee
paid by Customer hereunder during the month(s) in which the outage(s) occurred, for each 4 hour period
in any day that such outages occurs during a particular month. In no case will the total credit issued
exceed the Customer’s monthly services fee for that month.
ii. Exceptions: (1) circumstances beyond TC’s reasonable control, including, without limitation,
acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other
labor disturbance, interruption of or delay in transportation, unavailability of or interruption or
delay in telecommunications or third party services, failure of third party software; (2) failure of
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access circuits to the TC Network, unless such failure is caused solely by TC; (3) scheduled
and emergency maintenance and upgrades; (4) DNS or Internet routing issues outside the
direct control of TC.
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GENERAL SERVICES AGREEMENT
This General Services Agreement (“Agreement”), dated as of the date of the last signature below (the
“Effective Date”), is between MBO Data LLC, d/b/a TulsaConnect (“TC”), and the customer identified on
the signature page (“Customer”).
1. Service.
(a) TC will provide service (“TC Service”) to Customer subject to the terms and conditions of
this Agreement.
(b) Customer will not use any TC Service in violation of any community standards, accepted
Internet policy, applicable terms of use, privacy policies, laws, or regulations of local, state,
or federal governments or agencies, or international treaties. Actions such as, but not
limited to, misuse of copyrighted, patented, licensed, or protected materials, use of the TC
Service for defamatory, threatening or obscene purposes, mishandling of sensitive or
personal information, and the mass distribution of any message on an intrusive basis to
users of the Internet are prohibited. This prohibition extends to the sending of unsolicited
mass mailings from another service, which in any way implicates the use of the TC Service,
TC equipment, or any TC provided e-mail or IP addresses. Violations of this section are
grounds for termination of the TC Service. Additional terms may apply based on the TC
Service type as outlined in the Acceptable Use Policy (AUP) available on the TC website
and which is incorporated herein by reference.
2. Security.
(a) The Internet is not a secure network. Confidential or sensitive information should not be
transmitted over the Internet unprotected. TC is not responsible for loss or theft of
information transmitted over the Internet. TC encourages Customer to employ VPN, SSL,
SSH, or other data encryption technologies when conducting business over the Internet.
(b) TC will employ reasonable security measures on TC devices, including but not limited to
routers, switches, servers and the like, including any necessary security patches, IP access
lists, and associated services. TC will not be responsible for security on Customer
Provided Equipment (as defined in Section 7(b)(i)) or equipment rented to Customer by TC
unless TC is specifically contracted to do so by the Customer as part of a Service
Agreement (as defined in Section 6(a)). If at any time TC determines that security
measures, including, without limitation, patches, are necessary to protect the integrity of
the TC Service, TC may implement such security measures without communicating in
advance with the Customer and without liability to Customer. TC will use reasonable
commercial efforts to inform Customer of such security measures.
(c) TC performs scanning of inbound e-mail messages destined for TC owned e-mail servers
for spam, viruses, other malware, and may scan mail destined for Customer Provided
Equipment (as defined in Section 7(b)(i)) or servers rented to Customer by TC if specifically
contracted to do so. TC may implement scanning of outbound e-mail messages upon
notice to Customer via TC’s standard notification procedures. TC makes no warranties as
to the effectiveness of inbound or outbound scanning and accepts no liability should
Customer devices become infected. Customer is responsible for employing industry standard
anti-malware and intrusion prevention software on Customer devices.
(d) TC provides reasonable physical security measures for TC data center facilities, including
electronic security measures, biometric access controls, and locked enclosed racks.
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Access to our facilities is limited to those who have a TC escort. When possible, access
to TC data center facilities outside of business hours will be scheduled with TC personnel
in advance.
(e) Customer shall provide updated contact information for approved technical personnel any
time there is a modification of such information. TC shall be entitled to rely on information
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provided by Customer without the obligation of further investigation. Before providing
access to TC’s data center facilities, TC will use reasonable efforts to verify the identity of
any person purporting to be an authorized representative of Customer and verify that the
Customer has designated such person as an authorized representative.
(f) Depending upon what industry Customer is operating within or what type of data Customer
processes or handles (e.g., medical or financial), there may be various security and related
laws, regulations and standards with which Customer is obligated to comply, including,
without limitation, HIPAA (Health Insurance Portability & Accountability Act),
SOX (Sarbanes Oxley Act), (GLBA) Gramm Leach Bliley Act, HITECH (Health Information
Technology for Economic & Clinical Health), and PCI DSS (Payment Card Industry Data
Security Standard) (collectively, “Compliance Standards”). While TC may provide certain
TC Services designed to assist Customer with compliance with certain Compliance
Standards, actual compliance with Compliance Standards is solely Customer’s
responsibility and TC is not responsible for ensuring that Customer’s systems operating in
conjunction with the TC Services or TC equipment are compliant with the Compliance
Standards. Additionally, the Compliance Standards include many features that are out of
TC’s control including, without limitation, Customer’s network and business processes.
ACCORDINGLY, TC DISCLAIMS ANY AND ALL WARRANTIES AND
REPRESENTATIONS THAT THE TC SERVICES, EQUIPMENT, SYSTEMS, NETWORK
OR PROCESSES ARE COMPLIANT WITH ANY COMPLIANCE STANDARD AND TC
DOES NOT REPRESENT THAT TC WILL UNDERTAKE ANY EFFORTS TO ACHIEVE
SUCH COMPLIANCE IN THE FUTURE. [TC will use its reasonable commercial efforts to
cooperate with Customer in Customer’s efforts to meet its obligations under the
Compliance Standards, but without any further obligation.] Determinations of TC
compliance or verification of TC compliance with any applicable rule, law, or standard
requires a separate agreement.
(g) Customer is responsible for compliance, compliance costs and legal costs associated with
unauthorized access, breaches, suspected or detected security compromises related to
this Agreement, including without limitation, notification to regulators, consumers,
consumer credit card companies, media, and law enforcement.
3. IP Address and Domain Name Services.
(a) All IP addresses that may be required for the TC Service shall be provided solely by TC.
If Customer leaves TC Service, all IP addresses must be returned to TC for reallocation to
other Customers within 48 hours and will not be available for continued use by departing
Customers.
(b) TC will host Customer domain name(s) on its servers when contracted to do so by
Customer. In the event Customer also elects to have TC register a domain name on behalf
of Customer with an approved domain name registrar, TC may do so but TC will not be
responsible for the ownership, control, and use of the domain name. If a Customer is no
longer using any other TC Service, Customer will be responsible for moving the domain
name to a new registrar or establishing a “domain registration” only account with TC. TC
shall have no liability for Customer’s failure to maintain registration of any domain name.
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4. Software Installation, Licensing, and Usage Compliance.
(a) Customer is responsible for the procurement and installation of all Software, as that term
is hereinafter defined, installed on Customer Provided Equipment (as defined in Section
7(b)(i)) or equipment rented to Customer by TC unless otherwise specified in a Service
Agreement (as defined in Section 6(a)).
(b) Customer is responsible for complying with the software licensing and usage agreements
for all software installed on Customer Provided Equipment (as defined in Section 7(b)(i))
or equipment rented to Customer by TC (“Software”) as set forth by the software vendors
(“Vendors”). Customer is liable for payment of all fines and/or penalties assessed against
it or against TC for violation of any software licensing or usage agreements with respect to
Software installed on Customer Provided Equipment (as defined in Section 7(b)(i)) or
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equipment rented to Customer by TC.
(i) Customer must not remove, modify, or obscure any copyright, trademark, or patent
notice, or any other notice of proprietary rights from any Software. Customer must
not reverse engineer, decompile, disassemble, or modify any Software. Customer
must not make any copies of or distribute the Software.
(ii) Customer must notify TC of any changes to, additions, or removals of active user
licenses related to TC Service, active user accounts or this Agreement. An “active
user” is a user that has the ability to log into a system. Licenses based on active
user accounts include, but are not limited to, Microsoft Remote Desktop SAL,
Microsoft Office, Microsoft Visio, Microsoft Exchange Basic Mailbox SAL, and
Microsoft Exchange Standard Mailbox SAL. Notifications must be made via email
to support@tulsaconnect.com within 24 hours of the change, addition, or removal.
(iii) Customer must notify TC of any changes in quantity to licenses that are physical
processor or virtual processor based related to this Agreement and TC Service.
Licenses based on physical processor or virtual processor include, but are not
limited to Microsoft Windows Server and Microsoft SQL Server. Notifications must
be made via email to support@tulsaconnect.com within 24 hours of the change,
addition, or removal. Without limiting any of the foregoing, Customer shall provide
to TC satisfactory proof of a current, valid and enforceable license for any software
(e.g. Customer’s own Office 365 or other service providers) that Customer intends
to run concurrently with TC’s SPLA licenses within twenty-four hours after
Customer begins running such licensed software.
(iv) Customer must keep records relating to all use and distribution of products by
Microsoft affiliated with TC Service, and Microsoft has the right, at its expense, to
verify compliance with their products’ license terms.
(v) Customer is required to report Customer’s usage of or compliance with Software
licenses.
(vi) If verification or self-audit reveals any unlicensed use of Microsoft products, then
within 30 days (1) Customer must order sufficient licenses to cover its use, and (2)
if unlicensed use is 5% or more, Customer must reimburse TC for the costs
incurred in verification and acquire the necessary additional licenses at 125% of
the price, based on the then-current price list and customer price level. The
unlicensed use percentage is based on the total number of licenses purchased for
current use compared to the actual installed base.
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(vii) The Software is not fault-tolerant and is not guaranteed to be error-free or to
operate uninterrupted. Customer must not use the Software in any application or
situation where the Software’s failure could lead to death or serious bodily injury
of any person, or to severe physical or environmental damage (“High Risk Use”).
High Risk Use does not include utilization of the Software for administrative
purposes, to store configuration data, engineering and/or configuration tools, or
other non-control applications, the failure of which would not result in death,
personal injury, or severe physical or environmental damage. These noncontrolling
applications may communicate with the applications that perform the
control, but must not be directly or indirectly responsible for the control function. In
addition to the indemnification obligations set forth elsewhere in this Agreement,
Customer agrees to indemnify and hold harmless TC and the Vendors from any
third-party claim arising out of Customer’s use of the Software in connection with
any High Risk Use.
5. Compliance.
(a) Customer is responsible for notifying TC if Customer is a “covered entity” or “business
associate” of a covered entity under HIPAA or HITECH. Customer may not use a TC
Service to create, receive, maintain, or transmit protected health information on behalf of
itself or any covered entity unless and until Customer has notified TC and the parties have
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entered into a business associate agreement. Customer is responsible for notifying TC if
Customer intends to process any cardholder data as that term is defined in the PCI-DSS
or is required to be PCI-DSS-compliant or to meet any other Compliance Standards related
to the use or processing of cardholder data. Customer may not use a TC Service to create,
receive, maintain, or transmit cardholder data on behalf of itself or any other person unless
and until Customer has notified TC and the parties have entered into a separate agreement
regarding such Compliance Standards.
(b) Customer represents and warrants that Customer is not a resident of any country or
affiliated with any organization prohibited to do business within the United States.
(c) Customer further represents and warrants that Customer will not export, re-export, transfer,
or make available, whether directly or indirectly, any regulated item or information to
anyone outside the U.S. in connection with this Agreement without first complying with all
export control laws and regulations that may be imposed by the U.S. government and any
country or organization of nations within whose jurisdiction Customer operates or does
business.
(d) Without limiting the foregoing, Customer agrees to comply with all applicable U.S. and non-
U.S. laws, rules, regulations and orders, including, but not limited to, tax, export and import,
embargo and trade sanctions, intellectual property, including copyright, content, sales,
mail-order, commerce, and e-commerce laws and regulations. Customer shall be
responsible for determining what laws or regulations are applicable to Customer’s use of
the TC Services. Customer shall, upon the request of TC, provide TC assurance of
Customer’s compliance with those laws.
(e) TC is headquartered in the United States and currently our services are only intended for
individuals located in the United States. If you are located outside of the United States, be
advised that any information you provide to TC will be transferred to and stored in the
United States and that, by submitting information to TC, you explicitly authorize its transfer
and storage within the United States. We will protect the privacy and security of personal
information according to TC policies. If Customer is providing information that is subject
other security and privacy laws that require specific measures by TC, Customer will notify
TC, and Customer will be responsible for obtaining any necessary separate agreements.
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6. Service Agreements.
(a) Customer may submit to TC a request for a TC Service using TC’s standard service
agreement form, a valid TC Service proposal, or other such documents (each a “Service
Agreement”). If TC accepts the Service Agreement, TC will provide the TC Service to
Customer upon the rates, terms, and conditions specified herein and in the applicable
Service Agreement. Each Service Agreement submitted by Customer for a TC Service
shall incorporate and be subject to the terms and conditions of this Agreement. To the
extent that the terms contained herein vary from or conflict with the terms of any Service
Agreement, the terms of the Service Agreement shall control. Notwithstanding the absence
of Customer’s signature, an electronic Service Agreement shall be binding on Customer if
Customer has otherwise indicated acceptance of the Service Agreement. TC reserves the
right not to accept a Service Agreement under this Agreement at any time.
(b) Certain services may be provided by one or more third parties (“Third Party Services”), as
indicated on the applicable Service Agreement. TC’s right to provide or resell Third Party
Services remains subject to its agreements with the third party provider. Customer’s use
of Third Party Services may be subject to the third party’s terms and conditions, as
indicated on the applicable Service Agreement, and any third party terms and conditions
will apply solely with respect to Third Party Services. Unless directed otherwise by TC,
Customer shall interface and communicate directly with TC with respect to Third Party
Services.
(c) The effective date of the TC Service (the “Service Agreement Effective Date”) shall be the
date on which data packets can be sent to Customer (in the case of co-location, cloud
hosting, or dedicated / managed server) or the date that Customer domain name is
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installed on TC DNS and web servers (in the case of web hosting). Notwithstanding the
above, the date shall not be later than 60 days from the date of the Service Agreement
unless otherwise agreed to by TC. If Customer cancels a Service Agreement, or any
component of a Service Agreement, before the Service Agreement Effective Date,
Customer shall pay TC all reasonable, directly associated, documented and otherwise
unrecoverable costs and expenses incurred by TC in connection with cancellation.
(d) Unless otherwise specified in a Service Agreement, if Customer terminates a Service
Agreement after the Service Agreement Effective Date other than by reason of TC’s
default, Customer shall (A) provide at least 30 days’ written notice to TC of its intent to
terminate and (B) be liable for 100% of the remaining contract value. Specific early
termination fees may be contained within a Service Agreement.
(e) TC reserves the right to add, delete, or otherwise change its list of service offerings during
the term hereof. TC may cancel a TC Service provided to Customer under a Service
Agreement if (i) TC no longer has the legal or contractual right to provide the TC Service
(including, but not limited to, software license rights), (ii) TC ceases for any reason to
provide such TC Service, or its services generally, to the general public, or (iii) Customer
breaches the terms of this Agreement. TC may increase its software license or rental rates
so long as TC has provided 30 days advance written notice. If TC raises the rate for a
particular TC Service, Customer may terminate any affected component of a Service
Agreement, without liability, by giving written notice at least 10 days before the effective
date of the rate increase. Customer’s continued use of a Service after notice of a rate
increase shall constitute Customer’s acceptance of the new rate.
(f) Upon expiration of the term of a Service Agreement, the Service Agreement terms,
conditions, and rates shall continue on a month to month basis until Customer or TC
terminates the Service Agreement.
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(g) In addition to Services identified in a Service Agreement, TC may provide, upon
Customer’s request, technical support services (“Technical Services”) in connection with
Services provided to Customer under a Service Agreement. Technical Services include,
but are not limited to, remote or on-site technical support and phone or email support to
upgrade software or troubleshoot local network or equipment issues. Technical Services
are provided by TC (or third parties designated by TC) and not by Software Vendors. Onsite
Technical Services are limited to Customer locations within the Tulsa and Oklahoma
City metro areas. Remote Technical Services may be available in additional areas.
Technical Services are billed on a time and materials basis at TC’s then-current hourly
rates and are subject to the payment terms set forth in Section 8 below. Technical Services
may not be available in all circumstances. TC may decline to provide Technical Services
if: (i) Customer is not current in payments due under this Agreement or any Services
Agreement, (ii) Customer is otherwise in breach of any provision of this Agreement or any
Services Agreement, (iii) TC, in its reasonable discretion, determines that it is not
practicable to provide Technical Services to Customer under the circumstances. For onsite
Technical Services, Customer shall provide TC’s representatives with a safe working
environment and access to the worksite and equipment necessary for TC to provide the
Technical Services. Customer acknowledges that remote Technical Services will require
TC representatives to temporarily access and control Customer’s workstations. Customer
is responsible for backing up and maintaining the privacy of any data or files on the
workstation before providing TC representatives access to the workstation for the provision
of any Technical Services.TC cannot and will not be held responsible or liable for any
issues related to Technical Services.
(h) To be eligible for Technical Services, Customer must adhere to TC’s security requirements
as made in this Agreement, Service Agreements and our security requirements in our other
policies. This includes, but not limited to, restricting open TCP/UDP ports by IP address
or VPN access, the use of complex passwords, appropriate user access level (least
privileged concept), established maintenance schedules, installing patches deemed urgent
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by TC in a timely manner, etc. Failure to do so may result in the termination of Technical
Services, the removal of after-hours availability for technical services, and other chargeable
items.
7. Equipment and Installation.
(a) TC Provided Equipment
(i) TC, or its agent, shall provide, install, maintain, repair, operate and control TC’s
equipment based on the terms in the Service Agreement. Unless specifically
provided for herein, or in any Service Agreement, TC shall pay the cost of
purchasing and installing TC’s equipment and TC’s equipment shall be and remain
the sole property of TC.
(ii) Customer shall make TC’s equipment located on Customer’s premises available
for maintenance in a timely manner. Except as otherwise provided herein or in a
Service Agreement, TC shall provide reasonable notice before entering
Customer’s premises to install, maintain or repair any of the equipment. Customer
shall provide power, heating, cooling, security, and other environmental
considerations to TC’s equipment located on Customer’s premises in accordance
with this Agreement, the applicable Service Agreement, and equipment
documentation. TC is not responsible for any malfunction or interruption of service
attributable to Customer’s failure to maintain the environmental considerations.
(iii) Customer shall be liable for any loss or damage, including theft, to TC’s equipment
arising from Customer’s or a Customer authorized third party’s negligence,
intentional act, willful misconduct, unauthorized maintenance or other cause. In
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the event of any loss or damage to TC’s equipment pursuant to this paragraph,
Customer shall reimburse TC for the reasonable cost of repair of TC’s equipment,
or the replacement thereof, in TC’s sole discretion, within 30 days after receipt by
Customer of a written request for reimbursement. If TC does not receive
reimbursement of the cost of repair of TC’s equipment, or the replacement cost,
TC may, at its option, without liability, suspend TC Services until such amounts are
paid in full, or terminate this Agreement or any Service Agreement and avail itself
of its remedies hereunder, at law or in equity.
(iv) TC’s equipment shall remain the sole and exclusive property of TC, and nothing
contained herein shall give or convey to Customer, or any other person, any right,
title or interest whatsoever in TC’s equipment unless otherwise specified in the
Service Agreement. TC’s equipment shall at all times be and remain personal
property, notwithstanding that it may be, or become, attached to, or embedded in,
realty. Customer shall not tamper with, remove or conceal any identifying plates,
tags or labels identifying TC’s ownership interest in TC’s equipment. Customer
shall not permit or cause any lien or encumbrance to be placed on TC’s equipment,
and Customer shall immediately cause any such lien or encumbrance to be
removed upon TC’s demand.
(b) Customer Provided Equipment
(i) “Customer Provided Equipment” means any server, switch, or other equipment
provided by Customer, including equipment owned by Customer or owned by a
third party and leased to Customer. TC shall have no obligation to install, maintain
or repair Customer Provided Equipment unless otherwise specified in a Service
Agreement. If, on responding to a Customer-initiated support request, TC
determines that the cause of the service deficiency was a failure, malfunction or
the inadequacy of equipment other than TC’s equipment, Customer shall
compensate TC for services performed at its standard hourly rate, plus the cost of
any materials expended.
(ii) In some cases, TC may allow Customer to arrange for Customer Provided
Equipment to be shipped directly to TC’s facility for temporary storage until the
equipment is installed in the data center. In these cases, the delivery and storage
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of the equipment will be governed by a Short-Term Equipment Storage Contract
entered into between TC and Customer before delivery. Customers may request
that contract from their TC account representative.
(iii) Customer is solely responsible for Customer Provided Equipment that is located
in a TC facility. Customer agrees to provide insurance that TC deems adequate
in its discretion to protect Customer Provided Equipment from any and all events,
which may damage Customer Provided Equipment whether caused by Customer
representative, TC employee, any other party or an event who (which) may cause
damage to Customer Provided Equipment. Except as provided in subparagraph
(iv) of this Section 7 (b), in no case shall TC be liable for any damages, including,
without limitation, consequential, indirect or incidental damages, suffered by
Customer due to failure of Customer Provided Equipment for any reason.
Customer agrees to indemnify TC for any claims that may arise as a result of
Customer Provided Equipment being located in a TC facility.
(iv) TC shall be liable for only such loss or damage, including theft, to Customer
Provided Equipment that arises from TC’s gross negligence, willful misconduct, or
unauthorized maintenance. In the event of any loss or damage to any Customer
Provided Equipment pursuant to this paragraph, TC shall reimburse Customer for
the reasonable cost of repair of the equipment, or the replacement thereof, in TC’s
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discretion, within 30 days after receipt by TC of a written request for
reimbursement.
(c) Customer Storage Devices. Customers may arrange for hard drives, USB drives, or other
storage devices (“Storage Devices”) to be shipped directly to TC’s facility. Upon notice from
Customer, TC personnel will accept delivery of Storage Devices at the building delivery
entrance. Customer is solely responsible for arranging, insuring and paying for shipment
and for encryption of data on Storage Devices. TC is not responsible for (i) any mistake,
error, or omission in inspecting the shipment and (ii) any damage to or loss of the shipment,
any Storage Device, or data during shipment. Customer accepts all risk of loss during
shipment. TC’s only obligations with respect to delivery are to accept delivery and notify
Customer of the delivery. Upon delivery, TC personnel will connect the Storage Device to
Customer’s Service environment for Customer to transfer data.
8. Payment Terms and Services Suspension / Termination.
(a) Payment Terms
(i) Customer shall pay TC all recurring and non-recurring charges for the TC Service
at the rates set forth in each Service Agreement, or for Technical Services at TC’s
then-current hourly rates, plus all Taxes and Additional Charges (such as
bandwidth overage or other usage / consumption charges). Billing for the TC
Service will commence on the Effective Date, regardless of acceptance by
Customer.
(ii) TC will provide Customer with a monthly invoice for the TC Service and Customer
shall pay TC in full upon Customer’s receipt of invoice. If TC does not receive full
payment within 30 days after Customer received the invoice, TC may charge
Customer interest on the unpaid balance at the rate of 1.5% per month or the
highest lawful rate, whichever is lower. Customer shall pay all costs and expenses,
including reasonable attorneys’ fees, incurred by TC in collecting past due
balances.
(iii) Unless written notice of a dispute as to the charges for the Service is received by
TC within 30 days after the statement date, such statement shall be deemed
correct and payable in full by Customer. In the event of a billing dispute, Customer
shall timely pay the undisputed amounts and shall provide detailed information
regarding any such disputed amounts to TC.
(iv) If applicable, Customer shall keep on file with TC copies of its current tax
exemption certificates.
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(b) Suspension of Service; Termination of Service Agreement
(i) TC may suspend or terminate the TC Service to Customer if Customer:
(A) is more than 10 days past due in paying any TC invoice pursuant to its
terms, excluding those amounts which Customer has notified TC as
reasonably being in dispute; or
(B) is past due in paying 2 or more consecutive monthly invoices that are not
in dispute;
(C) files or initiates proceedings or has proceedings filed or initiated against it,
seeking liquidation, reorganization or other relief (such as the appointment
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of a trustee, receiver, liquidator, custodian or such other official) under any
bankruptcy, insolvency or other similar law; or,
(D) is otherwise in breach of this Agreement.
(ii) If TC terminates a Service Agreement pursuant to this Section, TC shall have the
right to (i) full payment for any amounts due TC for the TC Service rendered before
the date of termination, (ii) 100% of the remaining contract value, plus (iii) any
specific early-termination charges contained in the Service Agreement.
(iii) Upon 30 days written notice following defaults other than those described above,
the non-defaulting party may terminate a Service Agreement upon the other party’s
failure to cure the alleged default within such 30 day period. In addition to the
remedies set forth above, upon the default of a party, the other party may pursue
all remedies available to it under the terms hereof and under any applicable law.
(iv) Unless otherwise specified in a Service Agreement, if Customer terminates a
Service Agreement after the Service Agreement Effective Date other than by
reason of TC’s default, Customer shall (A) provide at least 30 days’ written notice
to TC of its intent to terminate and (B) be liable for 100% of the remaining contract
value. Specific early termination fees may be contained within a Service
Agreement.
(v) Upon termination of this Agreement or a Service Agreement, Customer may elect
to access and export its data within 30 days of the effective date of termination
(“Transition Period”). Customer must notify TC thirty days before the termination
effective date of its intent to utilize the Transition Period. If TC has received such
a timely notice, TC will provide Customer access to, and the ability to export,
Customer data during the Transition Period at TC’s then-current rates for the
applicable TC Service. TC may require a deposit to secure payment for TC
Services during a Transition Period. This Agreement and the applicable Service
Agreement will govern the TC Services during the Transition Period. Customer
may request transition assistance from TC personnel at TC’s then-current hourly
rates for Technical Services. TC may require a deposit before providing transition
assistance. Upon termination, TC may without liability whatsoever delete or
overwrite Customer data (1) on the termination date if Customer has not provided
notice of its intent to use the Transition Period or (2) at the conclusion of the
Transition Period if Customer has elected to use the Transition Period. Customer
is solely responsible for retrieving its data before the termination date or expiration
of the Transition Period, as applicable.
(c) Lien for Nonpayment. So long as any fees or other monies are due to TC and unpaid by
Customer, TC retains a lien on property of Customer in TC’s possession. Customer hereby
grants to TC a security interest in and to all property of Customer that is in TC’s possession
and shall execute all documents, instruments and agreements and do all things necessary
and appropriate to perfect TC’s security interest in such property. Even though this
Agreement provides for a lien by TC for the performance of services and materials
contemplated by this Agreement, this Agreement shall not be construed as a waiver by TC
of the right to assert any statutory lien that may be available under applicable law. To the
extent permitted by applicable law, Customer hereby waives any rights, statutory or
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otherwise, to retrieve or take possession of its property, though self-help or otherwise, that
is subject to the lien and security interest provided herein on such property until any and
all amounts due and owing to TC have been paid in full.
9. Taxes and Additional Charges. Any applicable federal, state or local use, excise, sales or
privilege taxes, duties, franchise fees, right of way fees, and right of entry fees or similar liabilities
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charged to or against TC or Customer because of Service furnished by TC (collectively, Taxes and
Additional Charges), shall be paid by Customer in addition to the regular charges under each
Service Agreement. Charges shall not include any taxes for which Customer has furnished a valid
exemption certificate.
10. Disclaimers; Limitation of Liability.
(a) TC DOES NOT WARRANT THAT THE TC SERVICES OR TECHNICAL SERVICES WILL
BE FREE OF ERRORS, BE UNINTERRUPTED, OR WILL MEET CUSTOMER’S
REQUIREMENTS. THE TC SERVICES AND TECHNICAL SERVICES ARE PROVIDED
ON AN “AS IS” BASIS AND TC EXPRESSLY DISCLAIMS ALL WARRANTIES,
CONDITIONS, AND INDEMNITIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY
ARISING FROM THE COURSE OF PERFORMANCE OR COURSE OF DEALING.
CUSTOMER UNDERSTANDS AND AGREES THAT TC WILL NOT BE LIABLE FOR ANY
TEMPORARY DELAY, OUTAGE, OR INTERRUPTION OF THE TC SERVICES, OR THE
UNAUTHORIZED ACCESS (“HACKING”) BY ANY THIRD PARTY INTO TC’S SERVERS
OR SYSTEMS, AND CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN
RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE
SPECIFICALLY SET FORTH HEREIN.
(b) TO THE EXTENT PERMITTED BY LAW, TC DISCLAIMS FOR ITS VENDORS ALL
WARRANTIES AND ANY LIABILITY TO CUSTOMER FOR ANY DAMAGES, WHETHER
DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE TC SERVICES.
(c) UNLESS OTHERWISE PROVIDED UNDER A SERVICE AGREEMENT, IT IS SOLELY
CUSTOMER’S DUTY AND RESPONSIBILITY TO BACKUP CUSTOMER’S FILES AND
DATA. UNDER NO CIRCUMSTANCES WILL TC BE LIABLE TO CUSTOMER OR TO
ANY PARTY CLAIMING BY OR THROUGH CUSTOMER FOR DAMAGES OF ANY KIND
UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER FILES AND/OR DATA.
(d) TC IS NOT LIABLE FOR: DELAYS IN INSTALLATION OR RESTORATION OF THE TC
SERVICE HEREUNDER; MISTAKES, ACCIDENTS, OMISSIONS, INTERRUPTIONS,
ERRORS OR DEFECTS IN THE ORDERING, PROCESSING, PROVISIONING, OR
TRANSMISSION OF THE TC SERVICE; LOSS OR DAMAGE OCCASIONED BY ACTS
OF GOD, FIRE, ELEMENTS, LABOR DISPUTES, SHORTAGES, UTILITY
CURTAILMENTS, POWER FAILURES, EXPLOSIONS, CABLE CUT AND OTHER
CAUSES BEYOND TC’S REASONABLE CONTROL; INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO
LOST PROFITS OR REVENUES, ANY LOSS OF DATA, LOSS OF USE, OR
INTERRUPTION OF BUSINESS); PUNITIVE DAMAGES ARISING FROM A BREACH OF
THIS AGREEMENT, AND TO THE EXTENT ALLOWED BY LAW, FOR INJURY TO OR
DEATH OF ANY PERSON AND FOR DAMAGE TO OR LOSS OF ANY PROPERTY
ARISING OUT OF OR ATTRIBUTABLE TO ITS OPERATIONS AND PERFORMANCE
UNDER THIS AGREEMENT. TC’S LIABILITY FOR ANY AND ALL CAUSES AND
CLAIMS WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR
OTHERWISE SHALL IN NO EVENT EXCEED THE GREATER OF 1) AN AMOUNT
EQUIVALENT TO THE PROPORTIONATE CHARGE BY TC TO CUSTOMER FOR THE
PERIOD OF SERVICE AFFECTED (NOT TO EXCEED 3 MONTHS), OR 2) IF
APPLICABLE, THE REPLACEMENT VALUE OF ANY CUSTOMER PROVIDED
EQUIPMENT WHICH IS LOST OR DAMAGED AS A RESULT OF TC’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT IN PROVIDING TC SERVICES OR
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PERFORMING TECHNICAL SERVICES. CUSTOMER ACKNOWLEDGES THAT THESE
LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND WITHOUT
SUCH LIMITATIONS TC WOULD NOT ENTER INTO THIS AGREEMENT.
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11. Indemnification.
(a) Customer shall indemnify, defend and hold harmless TC, its affiliates and their respective
directors, officers, employees, agents, successors, and assigns (the “Indemnified Parties”)
from and against any and all claims, actions, proceedings, damages, costs, expenses and
liabilities, including reasonable attorney’s fees and disbursements, arising from or related
to Customer’s use of any TC Service, Technical Services or the performance of its
obligations and duties under this Agreement except to the extent those damages, costs,
expenses, and liabilities arise from the negligence or willful misconduct of TC. TC shall
promptly notify Customer in writing of any such suit or claim.
(b) In addition to and not in limitation of the Customer’s obligations under subparagraph (a)
above, Customer shall indemnify, defend and hold harmless the Indemnified Parties from
and against any and all claims, actions, proceedings, damages, costs, expenses and
liabilities, including reasonable attorney’s fees and disbursements, incurred or likely to be
incurred by any Indemnified Party arising from or related to Customer’s failure to comply
with the terms of any third party software license or usage guidelines.
12. Subject to Laws. This Agreement, and each Service Agreement, is subject to all applicable
federal, state, and local laws, and regulations, rulings, and orders of governmental agencies, and
the obtaining and continuance of any required approval or authorization of any governmental body.
TC may terminate its obligations under this Agreement without liability if ordered to do so by the
final order or ruling of a court or other governmental agency or if such order or ruling would make
it impossible or commercially infeasible for either party to carry out its obligations under this
Agreement. In addition, if at any time during the Term of this Agreement, or any Service
Agreement, the action of a governmental agency requires modification of the TC Service provided
hereunder so as to impair service to Customer, Customer may terminate such TC Service upon 30
days written notice to TC.
13. Nondisclosure. “Confidential Information” means any business and technical information
disclosed by either party to the other party, either directly or indirectly, in writing, orally or by
inspection of tangible objects (including without limitation concepts, designs, documents,
prototypes or samples), which is designated as “Confidential,” “Proprietary,” or some similar
designation or is disclosed under circumstances which indicate its confidential nature. Confidential
Information may also include third party confidential information. Confidential Information shall not
include any information which (i) was publicly known and made generally available in the public
domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to the receiving party through no action
or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time
of disclosure by the disclosing party as shown by the receiving party’s files and records immediately
prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a
breach of such third party’s obligations of confidentiality; or (v) is independently developed by the
receiving party without use of or reference to the disclosing party’s Confidential Information, as
shown by documents and other competent evidence in the receiving party’s possession. Each party
agrees not to use any Confidential Information of the other party for any purpose except to perform
its obligations or exercise its rights under this Agreement. Each party agrees not to disclose any
Confidential Information of the other party to third parties or to such party’s employees, except to
those employees or consultants of the receiving party who are required to have the information.
Nothing in this Section precludes either party from disclosing the other party’s Confidential
Information as required by law or a legal process, provided that the party under a legal obligation
to disclose such Confidential Information gives the party whose Confidential Information is subject
to disclosure as much advance written notice of such potential disclosure as is possible in the
circumstances so that such party may seek confidential treatment of such Confidential Information.
Without limiting any of the foregoing, if the parties have signed a separate confidentiality, nondisclosure,
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or similar agreement (NDA), then such NDA is expressly incorporated herein by
reference and is specifically amended to provide that confidential information is able to be used by
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the parties for the purposes contemplated in this Agreement and the term of the NDA is extended
to be coterminous with the term of this Agreement.
14. Governing Law. This Agreement shall be construed and enforced in accordance with, and the
validity and performance hereof shall be governed by the laws of the State of Oklahoma. Any
action under this Agreement shall be brought in the appropriate federal or state court located Tulsa
County, Oklahoma, and each party hereby waives any objection to such jurisdiction.
15. Prevailing Party. If Suit is brought or an attorney is retained by either party to enforce the terms
of this Agreement or to collect any money as due hereunder or to collect any money damages for
breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy, the
reimbursement for reasonable attorneys’ fees, court costs, costs of investigation and other related
expenses incurred in connection therewith.
16. Relationship of Parties. Nothing in this Agreement will be deemed or construed to create any
relationship of principal and agent, partnership or joint venture between the parties. Solely to the
extent Customer licenses any Microsoft or other third-party Software from or through TC, Microsoft
and other third-parties are an intended third-party beneficiaries of the Service Agreement that
applies to such licenses, and Microsoft or other third-parties may enforce the provisions of that
Service Agreement and verify Customer’s compliance with it.
17. Further Assurances. Customer acknowledges and agrees that TC may amend this Agreement at
any time for purposes of compliance with applicable law, regulations, and requirements from
intended third-party beneficiaries including but not limited to Microsoft. Customer and TC agree to
cooperate in good faith to make any such amendments to this Agreement.
18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Customer shall not assign, delegate, or transfer any
of its rights or obligations hereunder without the prior written consent of TC, which shall not be
unreasonably withheld. TC may assign this Agreement to an affiliate or to a purchaser of
substantially all of the assets or equity of the business unit of TC responsible for the performance
of this Agreement.
19. Additional Provisions.
(a) This Agreement (including all Service Agreements, appendices, exhibits, attachments
and/or schedules attached hereto) constitutes the entire understanding between the
parties relating to the rights herein granted and the obligations herein assumed and
correctly sets forth the rights, duties, and obligations of each party to the other as of the
date of this Agreement. Any prior agreements, promises, negotiations or representations
regarding the subject matter of this Agreement are of no force or effect. This Agreement
shall not, however, affect or modify the terms or applicability of any other agreement
regarding other subject matters to which TC and Customer are parties. No alteration or
variation of the terms of any provision shall be valid unless made in writing and signed by
duly authorized representatives of TC and the Customer. If any one or more of the
provisions of this Agreement shall for any reason be held to be invalid or unenforceable,
the remaining provisions of this Agreement shall be unimpaired, and shall remain in effect
and be binding upon the parties. Service provided by TC is subject to the condition that it
will not be used for any unlawful purpose. No waiver of a breach of any provision of this
Agreement shall constitute a waiver of any other breach or of the future performance of
such provision.
(b) This Agreement commences on the Effective Date and continues until the expiration or
termination of the last remaining Service Agreement between the parties. Any provisions
of this Agreement that, in order to fulfill the purposes of such provisions, need to survive
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the termination or expiration of this Agreement, shall be deemed to survive for as long as
necessary to fulfill such purposes.
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Ninja (RMM tool) –
Welcome to the NinjaOne Web site (the “Site”). The Site has been developed exclusively
for use by NinjaOne partners, prospective partners, media, vendor partners and NinjaOne
employees. By using the Site, you agree to follow and be bound by the following terms
and conditions concerning your use of the Site (“Terms of Use”) and our Privacy Policy.
We may revise the Terms of Use and Privacy Policy at any time without notice to you.
Areas of the Site may have different terms of use posted. If there is a conflict between the
Terms of Use and terms of use posted for a specific area of the Site, the latter shall have
precedence with respect to your use of that area of the Site.
Use of Web Site Information
You may download, view, copy and print documents and graphics incorporated in these
documents (the “Documents”) from the Site subject to the following: (a) the Documents
may be used solely for personal, informational, non-commercial purposes; and (b) the
Documents may not be modified or altered in any way. Except where your use
constitutes “fair use” under copyright law, you may not otherwise use, download, upload,
copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any
information from this Web site in whole or in part without the express authorization of
NinjaOne.
Use of Software
Any use of software and accompanying documentation you download from the Site is
subject to the terms of a software License Agreement between you and NinjaOne. You
must read the license agreement and indicate your agreement to its terms prior to
installing or using the software. All rights, title and interest not expressly granted are
reserved.
Third Party Web Sites, Content, Products and
Services
The Site provides links to Web sites and access to content, products and services from
third parties, including users, advertisers, affiliates and sponsors of the Site. You agree
that NinjaOne is not responsible for the availability of, and content provided on, third
party Web sites. You should refer to the policies posted by other Web sites regarding
privacy and other topics before you use them. You agree that NinjaOne is not responsible
for third party content accessible through the Site, including opinions, advice,
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statements and advertisements, and understand that you bear all risks associated with
the use of such content. If you choose to purchase any products or services from a third
party, your relationship is directly with the third party. You agree that NinjaOne is not
responsible for: (a) the quality of third party products or services; and (b) fulfilling any of
the terms of your agreement with the seller, including delivery of products or services
and warranty obligations related to purchased products or services. You agree that
NinjaOne is not responsible for any loss or damage of any sort you may incur from
dealing with any third party.
Disclaimer
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, AND ALL CONTENT,
MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED ON THE
SITE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NINJAONE EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NINJAONE MAKES
NO WARRANTY THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS; (B) THE SITE
WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS;
(C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR ANY
SERVICES OFFERED THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; OR (D) THE
QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR
EXPECTATIONS. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE
AT YOUR OWN DISCRETION AND RISK. NINJAONE SHALL HAVE NO RESPONSIBILITY
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS
FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE.
NINJAONE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SITE AT ANY
TIME WITHOUT NOTICE.
Limitation of Liability
IN NO EVENT SHALL NINJAONE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS,
REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THE
SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Indemnity
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You agree to defend, indemnify and hold harmless NinjaOne, its officers, directors,
employees and agents from and against any and all claims, liabilities, damages, losses or
expenses, including reasonable attorneys’ fees and costs, arising out of or in any way
connected with your access to or use of the Site.
Privacy Policy
NinjaOne is concerned about your privacy and has developed a policy to address privacy
concerns. Click here to review the current privacy policy.
Note About Children
Minors are not eligible to use the Site, and we ask that they do not submit any personal
information to us.
Export Restrictions / Legal Compliance
You may not access, download, use or export the Site, or the content, software, products
or services provided on the Site in violation of U.S. export laws or regulations, or in
violation of any other applicable laws or regulations. You agree to comply with all export
laws and restrictions and regulations of any United States or foreign agency or authority,
and not to directly or indirectly provide or otherwise make available the services and
products of NinjaOne in violation of any such restrictions, laws or regulations, or without
all necessary approvals, including, without limitation, for the development, design,
manufacture or production of nuclear, chemical or biological weapons of mass
destruction. As applicable, you shall obtain and bear all expenses relating to any
necessary licenses and/or exemptions with respect to your own use of the services of
NinjaOne outside the U.S. Neither the services of NinjaOne nor the underlying
information or technology may be downloaded or otherwise provided or made available,
either directly or indirectly, (i) into Cuba, Iran, Libya, North Korea, Sudan, Syria or any
other country subject to U.S. trade sanctions, to individuals or entities controlled by such
countries, or to nationals or residents of such countries other than nationals who are
lawfully admitted permanent residents of countries not subject to such sanctions; or (ii)
to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and
Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. By
agreeing to these Terms and Conditions of Use, you agree to the foregoing and
represents and warrants that you are not located in, under the control of, or a national or
resident of any such country or on any such list.
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Applicable Laws
All matters relating to your access to, and use of, the Site shall be governed by U.S.
federal law or the laws of the State of Delaware. Any legal action or proceeding relating
to your access to, or use of, the Site shall be instituted in a state or federal court in
Delaware. You and NinjaOne agree to submit to the jurisdiction of, and agree that venue
is proper in, these courts in any such legal action or proceeding.
Copyright/Trademark Information
NinjaOne is a registered trademarks of NinjaOne. Other names appearing on the Site
may be trademarks of their respective owners.
TrendMicro (AV) –
IMPORTANT: READ CAREFULLY. LICENSE/PURCHASE/USE OF TREND MICRO SOFTWARE
AND APPLIANCES BY BUSINESS, GOVERNMENTAL, AND OTHER LEGAL ENTITIES IS
SUBJECT TO THE FOLLOWING LEGAL TERMS AND CONDITIONS. A DIFFERENT TREND
MICRO AGREEMENT GOVERNS THE LICENSE/PURCHASE/USE OF TREND MICRO
PRODUCTS THAT ARE PUBLISHED BY TREND MICRO FOR NON-BUSINESS USE, PERSONAL
USE, HOME USE, AND/OR CONSUMER USE. TREND MICRO GLOBAL BUSINESS SOFTWARE
AND/OR APPLIANCE AGREEMENT Trial and Paid Use: This Business Software and Appliance
Agreement supersedes all prior versions published by Trend Micro with respect to transactions
consummated on or after the Publication Date Publication Date: 1 January 2021 Version: English/Multi-
Country IF COMPANY AND TREND MICRO HAVE ENTERED INTO A MANUAL/ELECTRONIC
SIGNATURE-BEARING CORPORATE LICENSE AGREEMENT (OR OTHER SIMILAR
DOCUMENT) WITH RESPECT TO THE LICENSE/SALE OF ANY TREND MICRO SOFTWARE,
APPLIANCE, OR MAINTENANCE, THEN SUCH AGREEMENT WILL GOVERN AND CONTROL
THE POSSESSION/USE OF ANY PRODUCTS LICENSED OR SOLD TO COMPANY
THEREUNDER AND THIS AGREEMENT WILL HAVE NO EFFECT WITH RESPECT THERETO.
OTHERWISE, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL GOVERN AND
CONTROL COMPANY’S LICENSE/PURCHASE, POSSESSION, AND USE OF ALL PRODUCTS
ACQUIRED HEREUNDER. UNLESS PROHIBITED UNDER MANDATORY APPLICABLE LAW
WITHOUT THE POSSIBILITY OF WRITTEN WAIVER, IF COMPANY IS PRESENTED A
VERSION OF TREND MICRO’S TERMS AND CONDITIONS OF AGREEMENT (SUCH AS
“SHRINK-WRAP” OR “CLICK-WRAP” EULA OR SIMILAR DOCUMENT) THAT IS DATED
(EITHER EFFECTIVE DATE OR PUBLISHED DATE) PRIOR TO THE PUBLICATION DATE
HEREOF (EACH A “PRIOR VERSION”) THAT MAY APPEAR AND REQUIRE COMPANY’S
ACCEPTANCE DURING THE REGISTRATION/INSTALLATION/DEPLOYMENT OF SUCH
PRODUCT, THEN COMPANY AGREES THAT ITS ACCEPTANCE OF SUCH PRIOR VERSION
SHALLBE DEEMED TO BE ACCEPTANCE OF THIS AGREEMENTFOR ALLPURPOSES AND
SUCH PRIOR VERSION WILL BE MERGED INTO AND SUPERSEDED BY THIS AGREEMENT.
Any additional, conflicting, or different terms or conditions proposed by Company in any Companyissued
document (such as an Order), are hereby rejected by Trend Micro and excluded herefrom. 1. Entire
Agreement; Not a Master Purchase Agreement; Agreed Definitions. 1.1 Entire Agreement. This
Agreement is binding on Company and Trend Micro when referenced or incorporated in a Quote from
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Trend Micro or a Reseller that directs Company to the website at which this Agreement is posted and
Company places an Order for Products in response to such Quote that is accepted by Trend Micro by
issuance of a License Certificate to Company for the Ordered Products. If no such Quote is provided to
Company but nevertheless Company places an Order for Products with Trend Micro or a Reseller, the
Parties agree that such Order, if accepted by Trend Micro by issuance of a License Certificate to
Company for the Ordered Products, is licensed/sold on the terms and subject to the conditions set forth in
this Agreement (including all policies, procedures, and websites referenced herein) and the issued License
Certificate that is incorporated herein by reference and made a part of this Agreement for all purposes.
The Parties agree that this Agreement (including the Standard Contractual Clauses and Data Processing
Addendum that form a part hereof and set forth certain of the responsibilities of the Parties with respect to
GDPR Data) is the final, complete, and exclusive statement of the agreement of the Parties with respect to
the subject matter hereof, and any prior written agreements; representations, statements, or advertising of
Trend Micro whether oral or written; course of dealing between the Parties or usage of the trade; Orders;
or descriptions that are not specifically set forth in this Agreement with respect to the subject matter
hereof, are all merged into and superseded by this Agreement. In entering into this Agreement, each Party
represents and warrants to the other Party that it is NOT relying on any extrinsic representation, warranty,
covenant, promise, forbearance, or inducement of any kind or nature that is or was made by any person
that is not specifically set forth in this Agreement. By downloading, installing, deploying, and/or using
any Trend Micro Product obtained by Company for which a Trend Micro License Certificate is issued by
Trend Micro to Company, Company ratifies and confirms its agreement to this Agreement (including the
Standard Contractual Clauses, Data Processing Addendum, and the License Certificate) as the sole and
exclusive terms, conditions, limitations, and exclusions governing the purchase/license of such Products.
Direct questions, legal notices, and concerns regarding this Agreement to: legal_notice@trendmicro.com
1.2 Not a Master Purchase Agreement. Company acknowledges that this is NOT a master purchase
agreement for subsequent purchases of Products, but rather, this Agreement only applies to each instant
purchase/license of Products by Company. Each subsequent procurement/license of Products by Company
will be made subject to and conditioned on the agreement of the Parties to the then-current version of this
Agreement unless otherwise agreed in a writing signed by the Parties. 1.3 Procurement Under This
Agreement. Company may secure Products under this Agreement by one of three methods: a.
Procurement Through a Reseller. Typically, Company will secure a Quote for Products from a Reseller of
Trend Micro Products. Based on such Quote, Orders by Company will be sent to the Reseller at such
prices, discounts, and on invoice and payment terms as agreed solely by Company and its Reseller.
Company understands that if an Order is placed with a Reseller, the Reseller can place an order with
Trend Micro for Products (either directly through Trend Micro or through a Trend Micro distributor) as
requested by Company, but such Order is and will be subject to acceptance or rejection by Trend Micro at
its discretion. Based on documents submitted by the Reseller, Trend Micro will reject or accept the Order,
which acceptance is signified by Trend Micro’s issuance of its License Certificate. Except for the matters
agreed in the first sentence of this paragraph between the Reseller and Company, all other rights,
obligations, terms, conditions, limitations, and exclusions regarding Products that are Ordered by
Company are exclusively set forth in this Agreement. All payments by Company for Products will be
made directly to the Reseller and never to Trend Micro. Company acknowledges that each Reseller is an
independent contractor and in no event or circumstance will any Reseller now or hereafter be deemed a
joint venturer, partner, fiduciary, or agent of Trend Micro and NO Reseller has been or will be authorized
or permitted to have a right to create any binding obligation, responsibility, duty, liability, warranty,
guaranty, or any otherwise contract for or act on behalf of Trend Micro or waive or renounce any right of
Trend Micro or modify any right, obligation, or agreement of Company set forth in this Agreement. b.
Direct Purchase from Trend Micro. Company may (if permitted by Trend Micro) secure a Quote directly
from, and place an Order directly with, Trend Micro based on such Quote, which Order if accepted by
Trend Micro will be governed solely by the terms, conditions, limitations, and exclusions set forth in this
Agreement (including the License Certificate). All prices and payment terms will be as set forth in the
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Quote and all payments for Products will be made by Company directly to Trend Micro. c. Procurement
on a Store. Company may purchase a right to access and use (in accordance with Section 2.1(b)) certain
Products sold on and hosted by an Online Store Provider. In each such instance, Product is sold by such
Online Store Provider at prices determined by Trend Micro on payment terms determined by the Online
Store Provider, but such Products will be subject to and governed by this Agreement with such other
requirements as such Online Store Provider may impose in connection with Company’s use of its Store
and its services. 1.4 Agreed Definitions. In addition to initially capitalized definitions, descriptions,
clarifications, and agreements that may be set forth elsewhere in this Agreement (that include all policies,
procedures, and Trend Micro websites made a part hereof) that are referenced/incorporated herein, the
initially capitalized definitions, descriptions, clarifications, and agreements shall have the meanings set
forth in this Section 1.4 (each is an “Agreed Definition”) and all Agreed Definitions shall be equally
applicable to the singular, plural, and derivative forms. “Affiliate” means as to a Party, each person that is
Controlled by a Party, that Controls such Party, or that is under common Control with such Party.
“Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or
interests (or the maximum equity ownership permitted by Applicable Law if such Party is not permitted to
own more than 50%) entitled to vote for the directors or other management of such Party or the
equivalent, but only for as long as such ownership relationship continues to exist. Upon request, each
Party agrees to confirm in writing to the other Party, the status of any or all Affiliates. “Appliance” means
a hardware-based appliance designed and provided by Trend Micro as a Product that inseparably
combines Hardware and Integrated Software to form a single purpose, unified device that provides
capabilities, features, and functionalities as set forth in its Documentation. The Hardware portion of an
Appliance may be sold, leased, rented, or loaned hereunder, whereas the Integrated Software portion of an
Appliance is only licensed and never sold. “Appliance Differing Terms” shall have the meaning set forth
in Section 4. “Applicable Laws” means all mandatory national, federal, provincial, state, municipal, and
local laws, statutes, acts, ordinances, regulations, rules, codes, treaties, executive orders, supervisory
requirements, official directives, circulars, opinions, interpretive letters, and other official releases in the
Territory that are applicable from time-to-time to a Party’s performance of its obligations and/or exercise
of its rights hereunder, including, without limitation, data protection/privacy laws; corrupt
activities/illegal payment laws; economic/trade sanctions rules and regulations; and export/import laws.
“Communications” shall have the meaning set forth in Section 9. “Company” is the corporation,
company, or other legal entity (either public or private) that is listed on the License Certificate for such
Products as being the licensee/purchaser. In the event of conflict between an Order and a License
Certificate, the License Certificate shall control. “Company Data” means any data and information that is:
(a) automatically forwarded to Trend Micro-owned or –controlled servers by Company’s use of any
licensed Software or other Products; or (b) otherwise intentionally provided by Company to Trend Micro.
“Company’s Configuration” shall have the meaning set forth in Section 2.7. “Computer” means a Virtual
Machine or physical device that accepts information in digital or similar form and manipulates it for a
specific result based on a sequence of instructions, including without limitation mainframes, Servers,
workstations, desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internetconnected
devices, and hardware products capable of operating a wide variety of productivity,
entertainment, business, security, and/or other software applications. “Confidential Information” shall
have the meaning set forth in Section 10. “Contractor” is an independent contractor that provides services
in support of Company and/or its Affiliates with respect to any Products provided hereunder pursuant to a
written agreement between such Contractor and Company that imposes an obligation (among other
obligations) on such Contractor to fully comply with this Agreement to the extent of access to, possession
of, and/or use of any Product by such Contractor. “Controlled Technology” shall have the meaning set
forth in Section 17. “Data Processing Addendum” or “Addendum” means Trend Micro’s Data Processing
Addendum (at http://www.trendmicro.com/en_us/about/legal-policy/data-processing-addendum or as may
be requested by Company from legal_notice@trendmicro.com) that is applicable if and to the extent
Trend Micro acts as a ‘processor’ or ‘sub-processor’ (as defined in the GDPR) for Company of GDPR
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Data. The Parties agree that the Data Processing Addendum is incorporated herein and made a part hereof
for all purposes on the terms and subject to the conditions and limitations set forth herein and therein.
“Delivery Date,” “Delivered,” and “Delivery.” The Delivery Date shall be: (a) for Software, it is the date
that Software is made available by Trend Micro for electronic download by Company, and/or (b) for
Hardware, the date of actual shipment to Company, but some Appliances may be subject to different
delivery terms as notified by Trend Micro. All Products and Maintenance will be deemed for all purposes
to be Delivered in the country of Trend Micro’s place of business stated in the License Certificate.
“Different Terms” shall have the meaning set forth in Section 3. “Documentation” means the printed,
electronic, and online technical documentation and operating instructions generally made available by
Trend Micro for Products provided for the purpose of supporting Company’s Internal Business Use of
such Products as authorized in Section 2.1. “End User” means any individual, entity, or person (directly or
indirectly through another user) that: (a) accesses or uses a Product licensed hereunder for Company’s
benefit in accordance with this Agreement such as Company’s Administrator(s), technical/support
resources, or Company’s employees/contractors whose access/use is in furtherance of its Internal Business
Use; or (b) otherwise accesses or uses such Product. “GDPR” means the European Union General Data
Protection Regulation with mandatory effect May 25, 2018 that is only applicable to Personal Data that is
subject to, regulated by, and protected under the GDPR and shall also include additional laws, rules, and
regulations now or hereafter promulgated by the European Union, any Member State, or other
governmental authority under or supplemental to the GDPR, as the same may be amended, supplemented
or replaced from time to time; and ‘controller,’ ‘processor,’ and ‘data subject’ shall have the meanings
respectively assigned to them in the GDPR. “GDPR Data” shall mean ‘personal data’ (as defined in Art.
4) under the GDPR that is made available or supplied by Company to Trend Micro pursuant to this
Agreement, if and only to the extent that the GDPR applies to Trend Micro with respect to its processing
of such Personal Data. “Global Privacy Notice” means Trend Micro’s Global Privacy Notice published
from time-to-time at https://www.trendmicro.com/en_us/about/legal/privacy-policy-product.html or as
may be requested by Company from legal_notice@trendmicro.com. “Government Agency” shall have the
meaning set forth in Section 18. “Hardware” means the hardware product that Integrated Software is
embedded in or preloaded on by Trend Micro and sold as an Appliance and all Documentation therefor.
“Instance” means an image of software on a physical device or Virtual Machine that is created by
executing the software’s setup or install procedure or by duplicating an existing Instance, and thereafter,
that Instance is “run” by executing one or more of its instructions. Once running, an Instance is running
(whether or not instructions continue to be executed) until it is removed from memory. “Integrated
Software” means the object code version of any Trend Micro-published/branded applications software
that is embedded in or preloaded on Hardware by Trend Micro to form an Appliance. Integrated Software
is licensed hereunder (and no right, title, or interest therein is sold) for a Subscription Period that is no
longer than the life of the Appliance and is not re-deployable to replacement Hardware except as may be
specifically permitted herein. “Internal Business Use” means the internal business access and use of
Product licensed hereunder solely by and for the direct benefit of Company specifically in connection
with the security, protection, and/or integrity of Company’s systems, networks, devices, documents,
emails, and/or other Company Data. “IP Claim” means any suit, cause of action, or other legal proceeding
filed/brought against Company by a third party in the courts of law, equity, or otherwise ONLY in the
Territory, that asserts that Software licensed hereunder directly infringes any patent, copyright, and/or
trademark of such third party. “License Certificate” means an written (electronic or otherwise)
acceptance/entitlement confirmation issued by Trend Micro to Company with the license/purchase of
Products that confirms to Company the Products purchased by Company, including the applicable
Licensed Capacity where applicable. The License Certificate and this Agreement forms the entire
agreement between Trend Micro and Company with respect to each Order of Products that is accepted by
Trend Micro. Company is advised to retain the License Certificate as proof of its entitlement to such
Products. “Licensed Capacity” is defined (includes quantity, licensing metric, and term of license) as and
notified in the License Certificate when Standalone Software is licensed hereunder, the number of licenses
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of each type of Standalone Software that Company purchases from time-to-time and is then-validly
licensed to Company under this Agreement, based upon Trend Micro’s licensing measurement for each
particular Standalone Software. The applicable licensing metrics/measurements (which may include,
without limitation, measurement by Computer/CPU, Virtual Machine, device, node, Instance, Server, and
user, as applicable) available to Company for Standalone Software licensed hereunder will be determined
by Trend Micro from time-to-time for each Product. “Licensing Entity” shall have the meaning set forth
in Section23. “Maintenance” of Software shall have the meaning and description set forth in Section 5.
Any maintenance or support of Hardware shall have the meaning and description set forth in applicable
Appliance Differing Terms. “Non-Production Environment” means Company’s use of an Appliance
and/or Software exclusively in a laboratory, test, or research environment (and not in Company’s
production environment/systems) that does not access or make use of live production data at any time or
for any reason. “Online Store Provider” means an entity that hosts an online marketplace or store (each a
“Store”) that offers for sale: (1) such entity’s infrastructure (IaaS) and/or platform (PaaS) hosting services
by separate agreement and a separately-stated service fee with the customer; together with (2) the
software applications of third party publishers (such as Trend Micro) that are offered and resold (for a
separately-stated royalty/fee) by such service provider entity for deployment on its infrastructure and/or
platform, but licensed to the customer by the publisher for a Subscription Period. With respect to the
access and use of any Trend Micro Standalone Software that is procured by Company on an Online Store
Provider’s store in accordance with Section 2.1(b), the Parties agree that the Online Store Provider is and
will be solely responsible to Company for its infrastructure and/or platform hosting services and Trend
Micro is solely responsible to Company for the Standalone Software and the Updating thereof. Examples
of such Stores are AWS Marketplace, Microsoft Azure, Google Marketplace/Launcher, and VMware
Marketplace. Unless stated to the contrary in the Store Purchase Exceptions published from time-to-time
at www.trendmicro.com, the Parties agree that the Licensing Entity for any Standalone Software
purchased from a Store and licensed under Section 2.1(b) is Trend Micro Incorporated as set forth in
Section 23.2 and not as may otherwise be determined by application and operation of Section 23 hereof.
“Open Source Software” means: (1) each and every third party software code/component that is
licensed/distributed under a license agreement approved by the Open Source Initiative or similar open
source or freeware license (and not this Agreement); and (2) is embedded or included in a Product
licensed hereunder; including any of the following Open Source Initiative-approved license agreements:
(a) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), and GNU Affero Public License;
(b) The Artistic License (i.e., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e)
the Berkeley software design (BSD license including Free BSD or BSD-style license; (f) the Sun
Community Source License (SCSL); (g) an Open Source Foundation License (e.g., CDE and Motif UNIX
user interfaces); (h) the Apache Server license; or (i) the MIT License. For the avoidance of doubt, each
individual, third party software code/component of Open Source Software has its own copyright and its
own license agreement. “Optional Features” means optional (as may be configured, restricted, limited,
and/or disabled by Company in creation of Company’s Configuration) capabilities, features, and
functionality (such as the Smart Protection Network and/or Web Reputation Services, each as is more
fully described in its Documentation) of a Product licensed hereunder that, among other things, collects
and forwards certain Company Data (some of which may be Personal Data) for processing that is
necessary to permit Trend Micro to, among other things, provide the capabilities, features, and
functionality of such Product, including those that are optional, that Company deems necessary or
appropriate for its business needs in determining Company’s Configuration. “Order” means a
procurement document placed by Company (with a Reseller or Trend Micro, as the case may be) for the
procurement of Products to be supplied only in accordance with and subject to the provisions of this
Agreement. All Orders are Customer’s irrevocable commitment to purchase and pay for the Products
stated in the Order and are subject to direct or indirect (where the Order is placed with a Reseller)
acceptance by Trend Micro at its sole discretion, which acceptance occurs and is signified by Trend
Micro’s issuance of a License Certificate to Company for such Products or other Trend Micro
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performance (the “Order Effective Date”). “Party” means only each of the persons entering into this
Agreement and all other persons such as Affiliates and Contractors of each Party are third parties without
rights or benefits hereunder. “Personal Data” means one or more data elements relating to an identified or
identifiable natural person that can be used to identify, directly or indirectly, such natural person to the
extent such data is regulated, protected, restricted, or controlled under Applicable Laws (such as, for
example, the GDPR) for the protection of that natural person’s privacy and related rights. “Perpetual
Period” means with respect to a license granted for Standalone Software that extends for an indefinite
period of time, subject to earlier termination in accordance herewith. For the avoidance of doubt,
Standalone Software that is licensed for a Perpetual Period never includes a payment for, or a right to
receive without additional fees or compensation, Maintenance for the entire Perpetual Period. “Products”
means and includes Software, Appliances (including Hardware), and Maintenance that is
licensed/purchased hereunder, but does NOT include: (a) Trend Micro “software-as-a-service” and
“cloud-based” service offerings; or (b) PSP services or other premium, enhanced, managed, technical, or
engineering services or support that may be provided by Trend Micro pursuant to a separate agreement or
statement of work for additional compensation. Trend Micro specifically reserves the right from time to
time in its discretion and without incurring any liability to Company: to modify the design, specifications,
as well as functionality of any Product; and/or end-of-life (in accordance with Trend Micro published
policies) such Product “Quote(s)” means one or more documents issued by Trend Micro or its Reseller (as
the case may be) to Company specifying the Software, Appliance, and/or Maintenance that Company
seeks to obtain, the related pricing, payment terms, and Licensed Capacity and sufficient other
information to complete the transaction. Each Quote shall incorporate this Agreement (whether
specifically, by reference, or by publication) as the sole basis and governing document for any
procurement by Company based on the Quote. “Reseller” means a reseller, system integrator, independent
software vendor, VAR, OEM or other channel partner that is authorized by Trend Micro or its distributor
to secure orders for the license/sale of Products to end users, including Company. “Separate Modules”
means any plug-in or module for Software that Trend Micro determines to be new or a different
product/features/functionality that Trend Micro makes generally available to the public by license for new
or additional consideration. Separate Modules are not included with Maintenance or Updates to existing
Software. “Server” means a computer or device (and deployed software) on a network that provides
functionality, management, and/or support for other devices and/or other network resources, such as a
web server, file server, a database server, or a print server. “Software” means the object code version of
Integrated Software, Standalone Software, and Test Software and includes all Documentation and
Updates thereto made available to and purchased by Company. In no event or circumstance will a source
code version of any Software be offered, licensed, or otherwise provided hereunder to Company.
“Software Limited Warranty” shall have the meaning set forth in Section 11. “Standalone Software”
means the object code version of any applications software (and Updates thereto) that is published by and
is generally made available for license from Trend Micro hereunder that does not include any Hardware,
nor is it licensed by Trend Micro as part of an Appliance. Standalone Software also includes Instances
thereof that are licensed for deployment in a Virtual Machine environment. “Standard Contractual
Clauses” or “Clauses” or sometimes also referred to the “EU Model Clauses” means the Standard
Contractual Clauses (processors) published by the European Commission, which Standard Contractual
Clauses are attached to the Data Processing Addendum at http://www.trendmicro.com/en_us/about/legalpolicy/
data-processing-addendum or as may be requested by Company from
legal_notice@trendmicro.com. The Parties agree that the Standard Contractual Clauses are incorporated
herein and made a part hereof for all purposes on the terms and subject to the conditions and limitations
set forth herein and in the Data Processing Addendum, and in the event such Clauses are in conflict with
anything contained herein or the Addendum, such Clauses shall govern and control. The Parties further
agree that if a subsequent replacement version of the Clauses is published by the European Commission,
such replacement version will automatically replace the existing Clauses and apply mutatis mutandis;
provided, however, should Trend Micro at any time put in place other measures to ensure that the transfer
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is in compliance with the GDPR (such as becoming certified under Privacy Shield), the Parties agree that
the version of the Clauses then-in-effect between the Parties will automatically terminate and be
superseded by such other measures when those measures take effect. “Store” shall have the meaning as set
forth within the definition of Online Store Provider above. “Subscription Period” means, only if available
from Trend Micro for a specific version of Software, the limited term/increment of time (i.e., not a
Perpetual Period) that the Software is licensed for use by Company. Such Subscription Period may be
offered by the week, month, or year (not to exceed three (3) years), during which period, the licensee has
the right to use the Software (and receive Maintenance without additional cost) in accordance herewith.
After expiration of the Subscription Period, a new Subscription Period or Perpetual Period license must be
purchased in order to continue the use of the expired Software. Integrated Software is always licensed for
the limited Subscription Period that expires and terminates at the end of such Subscription Period,
unlesssuch license is earlier terminated in accordance with this Agreement such as when the unit of
Appliance on which such Software was originally installed is no longer deployed and used in accordance
with the Appliance’s Documentation. “Term” shall have the meaning set forth in Section 22. “Territory”
means worldwide other than Japan, subject always to and limited by the terms, conditions, waivers,
limitations, disclaimers, and exclusions in this Agreement, and present and future Applicable Laws that
applies to the Products and/or the performance of either Party hereunder that prohibits or restricts Product
sale, use, or access: (a) to certain technology/goods/services; (b) to specified countries; and/or (c) by
defined persons. “Test Period” shall have the meaning set forth in Section 7.1. “Test Software” shall have
the meaning set forth in Section 7.1. “Test Use” or a “Test” shall have the meaning set forth in Section
7.1. “Trend Micro” means in each instance that Products are acquired under this Agreement, the
Licensing Entity that provides Products in such instance as determined by application of Section 23.
“Virtual Machine” means a software container, implementation, or emulation of a Computer (i.e., a
physical device) that runs its own operating system and executes application programs like a physical
Computer. “Updates” means and includes if and when generally made available by Trend Micro with
respect to Software licensed hereunder that is also subject to then-paid Maintenance, new object code
versions (including patches) of such Software that includes: (a) improvement of features/functionality that
is used to identify, detect, and block computer viruses, spam, spyware, malicious code, websites, or other
forms of computer abuse generally categorized as malware and other forms of content identification or
categorization; (b) corrections, modifications, revisions, patches, new definition files, maintenance
updates, bug fixes and/or other enhancements to, or for use in connection with, the Software; and/or (c)
major or minor new versions of existing Software that contains new features, improvements to existing
features, capabilities, structures, and/or functionality that Trend Micro makes available to existing
customers that have then-purchased Maintenance for such Software; provided, however, the term
“Updates” specifically excludes Separate Modules and does not apply to the Hardware component of any
Appliance. The access to and use of certain new versions, features, and/or functionality that Trend Micro
may offer to make available to Company from time-to-time as an Update may be (at Trend Micro’s
determination) subject to and contingent upon Company’s prior agreement to additional terms and
conditions that are applicable to such new versions, features, and/or functionality. Updates that are
released by Trend Micro from time-to-time replace or patch and will become part of previously licensed
copies of the updated Software and will not increase the units/Licensed Capacity of Software licensed
hereunder, or otherwise create additional copies or licenses of such Software, nor does any Update create
any new or additional warranty for the Software it Updates. 2. Software License; Right to Copy;
Limitations 2.1 Software License. Products are protected by patent, copyright, trade secret, and/or other
worldwide intellectual property Applicable Laws. On the terms and subject to Company’s continuous
compliance with the conditions set forth in this Agreement (including the License Certificate) and on the
condition precedent of Company making payment as directed in Section 1.3, Trend Micro hereby grants
only to Company solely for the Internal Business Use of Company (and any of its Affiliates and/or
Contractors as it permits in accordance with Section 2.5), a non-exclusive, non-transferable (except as
may be a required for Standalone Software licenses in the European Union under mandatory Applicable
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Laws that do not permit a written waiver or limitation), non-assignable (by operation of law or otherwise),
and revocable (in accordance herewith) right and license (with no right to sublicense) in the Territory to:
(a) install or have installed (on Computers owned by or under the control of Company through written
agreement with a Contractor), access, and use Standalone Software only as permitted in its
Documentation, each of the foregoing for the stated Subscription Period (unless the License Certificate
states that such Standalone Software is being licensed for a Perpetual Period) and in such Licensed
Capacity as is listed in the License Certificate; (b) access and utilize (only as permitted in its
Documentation) for a Subscription Period for the Licensed Capacity purchased, Standalone Software
licensed hereunder that was purchased on a Store to be hosted (for separate service fee) by that Online
Store Provider on its infrastructure/platform under a separate service agreement between Online Store
Provider and Company; (c) use Integrated Software (only as permitted in its Documentation) forming a
part of any Appliance purchased hereunder only for such limited time (not for a Perpetual Period) as it
forms a part of the unit of Appliance that it is originally shipped by Trend Micro to Company; and/or (d)
with respect to any Software that offers Trend Micro cloud-hosted functionality and/or Optional Features
that have been selected in Company’s Configuration, Company may enable, access, and/or utilize such
cloud-hosted functionality and/or Optional Features portion (if any) in accordance with applicable
Documentation only: (i) during a Subscription Period for Software licensed for that limited term; or (ii)
during the first year of newly-Licensed Capacity of such Software licensed for a Perpetual Period and for
such time thereafter that Company purchases Maintenance for such Software. 2.2 Right to Copy. With
respect to Standalone Software licensed under Section 2.1(a) only, Company shall have the right to
reproduce, without additional cost, a commercially reasonable number of copies of the Standalone
Software (in an unmodified form) and its Documentation that is licensed to Company only for
backup/failover, archive, and/or training purposes, provided that Company reproduces on or in such
copies any and all of the copyright, trademark, patent, and other proprietary notices or markings that
appear on the original copy of the Standalone Software (and Documentation). No copy of Standalone
Software will be utilized for production purposes (other than backup/failover testing or archive retrieval)
except for such time as the production copy of such Standalone Software is not being utilized for
production use. 2.3 Limitations/Conditions. Except as may be specifically granted hereunder by license to
Company in this Section 2 or to the extent prohibited by or inconsistent with any Different Terms
licensing Open Source Software to Company, Company agrees that it is not licensed hereunder to and as a
condition hereunder, will not (or otherwise allow third parties to): (a) modify, adapt, alter, translate, or
create derivative works (as defined under Applicable Laws) from any part of any Software (or its
Documentation) or authorize others to undertake any of the foregoing prohibited acts; (b) merge or embed
any Software with or in other software, sub-routines, or other binary code segments; (c) reverse engineer,
reverse compile, decompile, or disassemble any Product or object code thereof, or otherwise attempt to
decrypt, decode or discover the source code or underlying ideas or algorithms of any Software or part
thereof, including but not limited to sub-routines, functions, libraries or other binary code segments of
Software except and only to the minimum extent required to be permitted with respect to interoperability
under mandatory Applicable Law without the possibility of waiver; (d) distribute, license, sublicense,
lease, sell, rent, loan, mortgage, encumber, auction, or otherwise transfer or provide a copy of any
Software (or components thereof including any license or access key or authorization) to any third party;
(e) publish, provide, or otherwise make available to any third party, any competitive, performance, or
benchmark tests or analysis relating to the Software without the written permission of Trend Micro which
may be withheld or conditioned at the sole discretion of Trend Micro; (f) deploy or use Software or
Appliance in any manner other than as expressly permitted in its Documentation; (g) permit any third
party to use or benefit from the use or functionality of any Product (alone or in combination with any
other product or service) via, for instance, third party outsourcing facility or service, service bureau
arrangement, time sharing basis, or as part of any other hosted or platform service that permits either
access to or use of any Products, whether on a specific fee basis or otherwise; or (h) attempt to do any of
the foregoing. Company understands and agrees that all Software and Appliances are subject to End-ofPage
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Maintenance/Support policies forming a part Trend Micro’s policies referenced in Sections 4 and 5 below.
2.4 Use Exclusions. Products are not fault-tolerant/fail-safe and are not designed, intended, suitable, or
licensed hereunder for use, and may not be used, in situations or environments requiring extra safety
features or functionality for fail-safe or fault-tolerant performance, such as: (a) the design, construction,
operation, or maintenance of any nuclear facility, civil infrastructure such as power plants and
waterworks, manufacturing facilities, or industrial plants such as chemical refineries; (b) aircraft
navigation, communications, or operating systems; (c) air traffic control systems; (d) operation of lifesupport
or life-critical medical equipment; or (e) any other equipment or systems in which the
circumvention, unavailability, inaccuracy, ineffectiveness, or failure of the Product could lead or
contribute to death, personal injury, or physical property/environmental damage, and Trend Micro
specifically excludes any right or license for any such use and disclaims any express or implied
warranty/guarantee of fitness for any such use. Only as may be specifically set forth in the Documentation
therefor, Trend Micro notifies Company that no Product has been submitted for compliance testing,
certification, or approval for any use by any governmental agency and/or a self-regulatory, standardsetting,
or other industry/product-specific consensus organization. 2.5 Affiliate and/or Contractor Use;
BYOL. 2.5.1 Affiliate and/or Contractor Use. For no more than the Licensed Capacity purchased by or on
behalf of Company as evidenced in a License Certificate, Trend Micro grants Company the right to
authorize and permit (for no additional fees or amounts due Trend Micro other than the fees already
payable with respect to licenses purchased by Company): (a) Company’s Affiliates to access, deploy,
and/or utilize Products only in connection such Affiliate’s Internal Business Use for so long as such
person remains an Affiliate of Company; and (b) Contractors to Company and/or its Affiliates to access,
install, deploy, and/or utilize Products only in connection with the provision of business process support,
technical support, or outsourcing services to and solely for the use and benefit of Company and/or
Affiliates in connection with its and their Internal Business Use and not for the benefit of any third party
or such Contractor, all of the foregoing on the terms and subject to the limitations and conditions of this
Agreement. Each Affiliate and Contractor having access to, possession of, and/or utilization of any
Product will be considered an authorized user of Company under this Agreement with respect to such
Product and NOT a separate or additional licensee or otherwise having any rights or deemed to be a third
party beneficiary hereunder in any event or circumstance. Company agrees at all times to require, ensure,
and enforce compliance with the grants, terms, conditions, and limitations set forth in this Agreement as
well as the Data Processing Addendum and Standard Contractual Clauses where applicable by Company’s
Affiliates (including, without limitation, those applicable to the Affiliate’s GDPR Data that may be
exported outside of the EEA to Trend Micro by the Affiliate’s use of any Product licensed to Company)
and/or Contractors having access to Products procured hereunder and, further, Company agrees that it
shall at all times be and remain legally and financially responsible to Trend Micro for the compliance and
non-compliance with, or breach of, this Agreement and the Standard the Data Processing
Addendum/Contractual Clauses where applicable caused by any Affiliate or Contractor. For the avoidance
of doubt, since all Maintenance is to be provided by Trend Micro only to Company, no Affiliate and/or
Contractor will be entitled to request or receive Maintenance directly from Trend Micro. 2.5.2 BYOL. In
addition to the rights and obligations of Company in connection with Contractor use in Section 2.5.1, the
Parties agree that all or any portion of the Licensed Capacity of Standalone Software licensed for a
Perpetual Period (unless otherwise authorized in the applicable Documentation as being available for
Products that are licensed for a prepaid Subscription Period) pursuant to Section 2.1(a) that is subject to
then-current paid Maintenance may be deployed and hosted on the infrastructure/platform of a Contractor
in a Bring-Your-Own-License (BYOL) environment for the sole access, use, and benefit of Company
and/or its Affiliates in accordance herewith. In partial consideration for Trend Micro granting the
foregoing rights without the payment of additional monies, Company agrees that Trend Micro will have
no responsibility to Company in any event or circumstance for, or liability or otherwise subject to or liable
for any damages whatsoever to Company with respect to, the actions or inactions of any such Contractor
or breach of its agreement with Company. 2.6 Ownership; Compliance Tools. The Parties understand and
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agree that all Software is licensed and not sold hereunder. The Parties agree that, as between the Parties,
all Software and its Documentation, and all worldwide intellectual property rights therein or related
thereto, are the exclusive property of Trend Micro, its Affiliates, and/or its or their licensors/suppliers. All
rights in and to Software not expressly granted to Company in this Agreement are reserved by Trend
Micro and Company will have no other or different rights (implied, by estoppel, or otherwise) or
privileges with respect to any Software. Nothing in this Agreement will be deemed to grant, by
implication, estoppel, or otherwise, a license under any of Trend Micro’s existing or future patents or
other intellectual property rights. Trend Micro reserves the right to take any and all reasonable steps to
prevent unauthorized access to, and use of, Software by any person. Company acknowledges and agrees
that Trend Micro may utilize and deploy in connection with any or all Products: (a) registration or license
keys or authorization codes that are required for activation and/or renewal of each or all copies or use of a
Product; and/or (b) other compliance tools, processes, procedures, and /or controls to ensure that
Company has purchased full entitlement for Products it has deployed. 2.7 Use of Company Data. 2.7.1
Company Data Provided to Trend Micro; GDPR Data. Company understands and agrees that the
installation and/or use of each Product and the Maintenance thereof will require that Company provide or
make available Company Data (including any GDPR Data and/or Personal Data) to Trend Micro.
Company may: (a) as and to the extent stated or permitted in the applicable Documentation for a specific
Product, elect to set the Company Configuration (as discussed further in Section 2.7.2) of a Product to
automatically forward (without human command or intervention) certain Company Data (including any
GDPR Data and/or Personal Data) to Trend Micro-hosted or -controlled servers (for example, by enabling
certain Optional Features of a Product); and/or (b) intentionally provide certain Company Data (which
may also be GDPR Data and/or Personal Data) to Trend Micro in connection with (i) Product registration,
activation and/or deployment/redeployment of a Product, and/or (ii) Maintenance provided by Trend
Micro to Company in relation to such Product. Company authorizes Trend Micro to utilize Company Data
(that may also be GDPR Data and/or Personal Data) for the effective delivery of the features,
functionality, and benefits of Trend Micro’s Products, Maintenance, and other services to Company as
well as to further its understanding of, and improve, the usability, capabilities, and effectiveness of Trend
Micros’ Products, Maintenance, and other services for Company and other customers and business
partners of Trend Micro. For information on how Trend Micro utilizes Personal Data comprised in
Company Data, please see the Global Privacy Notice. By entering into this Agreement, each of Company
and Trend Micro acknowledges and agrees that it is also entering into and agreeing to be bound by: (1) the
Data Processing Addendum; and (2) the Standard Contractual Clauses, it being further agreed that each of
the Addendum and Clauses shall only apply, on the terms and subject to the conditions and limitations set
forth herein and therein, if and to the extent that Trend Micro acts as a processor or sub processor for
GDPR Data (but not other Company Data) that Company (and its Affiliates that have been authorized to
access, deploy, and/or utilize Products pursuant to Section 2.5) provides or makes available to Trend
Micro hereunder. If any Affiliates of Company utilize any Products, Company hereby enters into and
agrees to be bound by the Data Processing Addendum and the Standard Contractual Clauses for itself and
on behalf of each such Affiliate, and Company represents and warrants to Trend Micro that Company is
duly authorized, and Company and all such Affiliates have each taken, all necessary action to do so
validly. 2.7.2 Company’s Configuration of Optional Features. Company acknowledges and agrees that
selection (during activation/initial deployment and at all times thereafter) and use of Optional Features in
each Product is solely Company’s responsibility in connection with the creation of Company’s
Configuration of each Product and assuring that Company’s Configuration conforms to Company’s
requirements, policies, and procedures regarding any processing of Company Data (including any GDPR
Data and/or Personal Data) and complies with all Applicable Laws in each jurisdiction to which
Company’s processing of any Company Data may be subject (including any GDPR Data and/or Personal
Data) and/or from which Company is accessing and utilizing an Optional Feature of such Product.
Therefore, Company agrees to: (1) review the capabilities, features, and functionality of the Optional
Features in the Documentation thereof; and (2) configure, restrict, limit, and/or disable each Optional
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Feature in order to cause its Company Data to be utilized in a manner that meets Company’s specific
needs and Applicable Laws (each Product as configured by or on behalf Company from time-to time is
herein referred to as “Company’s Configuration”). Except for Optional Features and permissions and
administrative selections described in the Documentation, Company understands that each Product is a
standard off-the-shelf software or hardware-based appliance and no additional or different instructions or
configurations are available to Company for such Product. 2.8 Security Acknowledgement. Due to the
continual development of new techniques for intruding upon and attacking networks, systems, and/or
Computers, Trend Micro does not represent, warrant or guarantee: (1) that Products will detect, block, or
completely remove, or clean any or all applications, routines, and files that are malicious, fraudulent or
that Company does not use or want; or (2) that any Product or any data, equipment, system or network on
which a Product is used (or protects) will be free of vulnerability to intrusion or attack. Company agrees
that the success of security efforts and the operation and protection of its Computers, networks, and data
are dependent on factors solely under Company’s control and responsibility, including, but not limited to:
(a) the design, implementation, deployment, and use of hardware and software security tools in a
coordinated effort to manage security threats; (b) the selection, implementation, and enforcement of
appropriate internal security policies, procedures and controls regarding access, security, encryption, use,
and transmission of data; (c) development of, and ongoing enforcement of, processes and procedures for
the backup and recovery of any system, software, database, and any stored data; and (d) diligently and
promptly downloading and installing all Updates to Products made available to Company. 3. Open Source
Software. The Software may come bundled or otherwise be distributed with Open Source Software that is
subject solely to the agreement terms, conditions, limitations, and disclaimers of the specific license (each
“Different Terms”) under which such Opens Source Software is redistributed to Company by Trend
Micro and NOT this Agreement. Different Terms applicable to any Open Source Software redistributed in
any Software provided hereunder will be identified by Trend Micro in the Documentation for, and/or in a
“Read Me” or an “About” file in, the Software. OPEN SOURCE SOFTWARE IS PROVIDED BY
TREND MICRO “AS IS, WITH ALL FAULTS, AS AVAILABLE” WITHOUT (AND TREND MICRO
SPECIFICALLY DISCLAIMS) ANY GUARANTEE, CONDITION, OR WARRANTY (EXPRESS,
IMPLIED, OR OTHERWISE) OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, SATISFACTORY QUALITY, TITLE, AND/OR NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AS IT RELATES
TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE
SOFTWARE, TREND MICRO SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED
AND/OR OTHERWISE BASED ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,
STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY
WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF TREND MICRO HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4. Appliances. Several Products available
hereunder are Appliances. As such, each Appliance has certain terms and conditions applicable thereto
that are in addition to, or different than, those set forth herein (all are “Appliance Differing Terms”). In
the event Company is licensing/acquiring/leasing/renting/testing/evaluating an Appliance hereunder,
Company agrees that the applicable Appliance Differing Terms are incorporated herein by reference and
made a part hereof for all purposes. Appliance Differing Terms may include, among other things: a
modified and/or different license grant and/or Maintenance for the Integrated Software that forms a part of
the Appliance; Hardware warranty and ownership; and/or a description of available maintenance and
support for Hardware and the Appliance in general. In the event of conflict between the terms and
conditions in the body of this Agreement, and those Appliance Differing Terms, the applicable Appliance
Differing Terms shall govern and control. Appliance Differing Terms are set forth at
https://www.trendmicro.com/en_us/about/legal/appliance-differing-terms.html as may be updated from
time-to-time and at any time. 5. Maintenance. All Standalone Software licensed for a limited term
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Subscription Period by Trend Micro includes paid Maintenance in the price of the license for the entire
Subscription Period that is purchased by Company. However, Standalone Software licensed for a
Perpetual Period hereunder includes Maintenance only for a period of one (1) year from Delivery of the
Standalone Software, thereafter, additional Maintenance then-offered by Trend Micro may be purchased
for Standalone Software in one (1) year increments. The description of Maintenance and Trend Micro’s
policies with respect to Standalone Software from time-to-time and at any time are set forth at
https://success.trendmicro.com/support-policies that are incorporated herein by reference and made a part
hereof for all purposes. The description of Maintenance and Trend Micro’s policies with respect to
Integrated Software are set forth in the Appliance Differing Terms. 6. Applicable Laws. To the extent
applicable to Company’s performance of its obligations and/or exercise of its rights hereunder (including
without limitation in relation to Company’s and its Affiliates’ (and its and their Contractors’) use and/or
configuration of any Product), Company represents (on an ongoing basis) and warrants to Trend Micro
and agrees that Company and its Affiliates’ (and its and their Contractors’) will: (1) comply with all
Applicable Laws (including, without limitation, the GDPR if and to the extent applicable) and will not use
or configure any Products or give any instructions to Trend Micro which would or could infringe, violate,
or otherwise not be in compliance with any Applicable Laws or could cause Trend Micro to do so; and (2)
identify, procure, and maintain any permits, certificates, approvals, consents, and inspections that may be
required or advisable in order to comply with Applicable Laws with respect hereto. If there is any failure
to comply with or breach of this Agreement arising out of or related to this Section, Company will
promptly (at no cost Trend Micro) do all things and take all actions as may be necessary or appropriate to
cure and correct any breach or noncompliance with any Applicable Laws. 7. Test/Evaluation of
Appliances and/or Software. 7.1 Test/Evaluation. If Standalone Software or Integrated Software is
provided to Company under this Agreement that has been identified by Trend Micro as “Evaluation,”
“Proof-of-Concept,” “Trial,” or “Test” Software (each a “Test Software”), then the provisions of this
Section 7 shall apply thereto and shall supersede any conflicting term or condition of this Agreement. In
each of the foregoing instances, Company is granted a royalty free, non-transferable, limited license to
install the Test Software on Computers located in the country of Delivery and owned (unless an
Appliance is provided by Trend Micro in connection with Test Use) by Company and only use the Test
Software for evaluation of such Test Software in a Non-Production Environment (a “Test Use” or a
“Test”) that is limited to thirty (30) days from the date the Test Software is Delivered to Company (or on
the date that an Appliance is shipped to Company by Trend Micro for a Test) unless otherwise agreed in
writing by Trend Micro (the “Test Period”). Sections 2.1, 2.2, and 2.5 of this Agreement do not apply to
Test Software, but Sections 2.3, 2.4, and 2.6 do apply to Test Software. If the Test Use involves an
Appliance (and Integrated Software), the Parties agree that the applicable Appliance Differing Terms sets
forth additional and/or different terms and conditions that are applicable to the Appliance and the
Integrated Software that forms a part of that Test Use Appliance. During the Test Period, Company may
be able to receive web or email based technical support in the country where Company is located, but
otherwise support is not generally available for Test Software or Appliances. 7.2 Exclusion; Limitation of
Liability for Test Software. TEST SOFTWARE AND ANY APPLIANCE MAY CONTAIN ERRORS
OR OTHER PROBLEMS THAT COULD CAUSE SYSTEM OR OTHER FAILURES AND DATA
LOSS. CONSEQUENTLY, TEST SOFTWARE IS PROVIDED TO COMPANY “AS IS, WITH ALL
FAULTS.” TREND MICRO SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY,
CONDITION, GUARANTEE, AND/OR LIABILITY TO COMPANY OF ANY KIND OR NATURE
WITH RESPECT TO TEST SOFTWARE AND ANY APPLIANCE ON WHICH THE TEST
SOFTWARE IS DEPLOYED. WHERE LEGALLIABILITY CANNOTBE EXCLUDED BY THIS
DISCLAIMER, BUT MAY BE LIMITED, TREND MICRO’S LIABILITY AND THAT OF ITS
SUPPLIERS/LICENSORS/RESELLERS UNDER THIS AGREEMENT RELATED TO TEST
SOFTWARE AND ANY APPLIANCE ON WHICH THE TEST SOFTWARE IS DEPLOYED, SHALL
BE LIMITED IN THE AGREEGATE TO THE SUM OF FIVE HUNDRED DOLLARS (USD$500.00)
OR THE EQUIVALENT IN LOCAL CURRENCY. Any information about the Test Software gathered
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from its access or use shall be used solely by Company for the test/evaluation and such information shall
not be provided to any third party. Notwithstanding anything contained herein, each Party has the right to
terminate any Test Use and the license herein granted at any time with or without reason with five (5)
days prior written notice to the other Party. Upon expiration of the Test Period or earlier termination as set
forth in this Section 7.2, Company agrees to automatically (and without notice or request from Trend
Micro) immediately stop using the Test Software and uninstall, delete, and irretrievably destroy all copies
of the Test Software and Documentation including those that may be included in any backup or archive
files and shall promptly confirm same to Trend Micro in writing. 8. Records; Audit. During the Term and
for two (2) years thereafter, Company agrees to retain and make available to Trend Micro accurate and
complete records and other system information sufficient to provide verification of the Licensed Capacity
of each Product licensed and Company’s utilization of Products is and has consistently been in
compliance with this Agreement. With at least twenty (20) days prior written notice, Trend Micro shall
have the right to cause an audit (by an internationally-recognized audit firm) to be conducted no more
frequently than once each calendar year. If an audit reveals any deployment or use of the Products that is
in excess of the Licensed Capacity or is otherwise out of compliance with this Agreement, then Company
agrees to promptly correct such non-compliance. If the Licensed Capacity for any unlicensed or excess
utilization of all Products audited hereunder is greater than, in the aggregate, ten percent (10%) of the
actual Licensed Capacity or licensed use for Products purchased by Company, Company agrees to
reimburse Trend Micro for its reasonable costs incurred in performing the audit. 9. Consent to Electronic
and Other Communications and Notices. Company agrees that Trend Micro may send Company required
legal notices and other communications about Products (including Updates), other and/or new Trend
Micro products and services, special offers and pricing or other similar information, customer surveys,
and other requests for feedback (collectively “Communications”). Trend Micro may provide
Communications via (among other methods): (a) in-person contacts by Trend Micro and/or Reseller
personnel; (b) in-Product notices or email to registered email addresses of named Company contacts;
and/or (c) posted Communications on its Websites. With respect to email notices, any such email notice to
Company will be sent by Trend Micro to the account administrator(s) named by Company during
registration. Company is responsible for ensuring that the email address for the Company’s account
administrator(s) is accurate and current. Any email notice that Trend Micro sends to the then-current
email address will be effective when sent, whether or not Company actually receives the email. By
accepting this Agreement, Company consents to receive all Communications through these means. 10.
Confidentiality/Non-Disclosure. Each Party hereto acknowledges that by reason of its relationship with
the other Party hereunder, it may have access to confidential information and materials concerning the
other Party’s business, technology, and/or products that is confidential to the other Party (“Confidential
Information”). Each Party’s Confidential Information is of substantial value to the Party, which value
could be impaired if such information was disclosed to third parties or used in violation of this
Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified
and labeled as Confidential Information belonging to the disclosing Party. When disclosed orally or
visually, Confidential Information must be identified as confidential at the time of the disclosure, with
subsequent confirmation in writing within fifteen (15) days after disclosure. Each Party agrees that it will
not use in any way for its own account or the account of any third party, such Confidential Information,
except as authorized under this Agreement, and will protect Confidential Information at least to the same
extent as it protects its own Confidential Information and to the same extent that a reasonable person
would protect such Confidential Information. Neither Party may use the other Party’s Confidential
Information except to perform its duties or exercise its rights under this Agreement. The Confidential
Information restrictions will not apply to Confidential Information that is (a) already known to the
receiving Party at the time of access hereunder; (b) is or becomes publicly available through no wrongful
act of the receiving Party, (c) independently developed by the receiving Party without benefit of the
disclosing Party’s Confidential Information; (d) has been rightfully received from a third party not under
obligation of confidentiality; (e) disclosed in any legal proceeding arising from or in connection with this
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Agreement; or (f) required to be disclosed by law, provided the Party compelled to disclose the
Confidential Information provides the Party owning the Confidential Information with prior written notice
of disclosure (only if legally permissible) adequate for the owning Party to take reasonable action to
prevent such disclosure. Unless otherwise agreed to by both Parties, upon termination of this Agreement
or an applicable Addendum, each Party will return the other Party’s Confidential Information. In the event
that the Parties hereto have previously entered into a non-disclosure or confidentiality agreement that is
still in effect on the Order Effective Date of this Agreement, then the Parties hereto agree that such prior
agreement is hereby merged into and superseded by this Agreement ONLY with respect to the subject
matter hereof and the transactions undertaken pursuant hereto. 11. Limited Warranty – Software. 11.1
Limited Warranty. Trend Micro warrants to Company only that on the initial Delivery Date of any
Software licensed under this Agreement and for thirty (30) days after the Delivery Date therefor, that such
Software when installed on compliant/compatible hardware and only as permitted in and in accordance
with its Documentation, will substantially conform to its Documentation (the “Software Limited
Warranty”). Any replacement of non-conforming Software will be warranted for the remainder of its
original Software Limited Warranty period. In the event that any Software does not comply with the
foregoing warranty and such non-compliance is notified to Trend Micro within the warranty period, and if
Trend Micro is unable to bring any Software into conformity with the Software Limited Warranty after
using commercially reasonable efforts, either Company or Trend Micro may (at the discretion of each)
immediately terminate this Agreement for convenience (by giving written notice no later than ten (10)
days after the end of the Software Limited Warranty Period) only as to the non-conforming Software. In
the event the license is terminated as aforesaid, the license granted to Company to such Software
shallimmediatelyterminate. Upon receipt of Company’s certification thatithasirretrievablydestroyed such
terminated Software, Trend Micro shall refund to Company all fees paid by Company for the affected
Software. The applicable limited warranty provided by Trend Micro with respect to Integrated Software
forming a part of an Appliance is available as directed in Section 4. 11.2 Warranty Exclusions. The
Software Limited Warranty provided in this Section 11 does not apply to and shall be void: (a) in the
event of failure of any Software arising or resulting from improper installation or any modification,
alteration, or addition thereto, or any problem or error in the operating system software with which the
Software is installed and is designed to operate; (b) if any problem or error in the Software has resulted
from improper use, misapplication or misconfiguration, or the use of the Software with other programs or
services that have similar functions or features which are incompatible with the Software; (c) if the
Software is licensed as Test Software for which Trend Micro does not charge a royalty or license fee; or
(d) if Trend Micro does not receive notice of a non-conformity within the applicable warranty period. 11.3
Exclusive Remedy. The Parties agree that the rights, obligations, and remedies of the Parties in this
Section 11 are in lieu and satisfaction of any right of acceptance/rejection of any Software that Company
may have under Applicable Law and Company hereby waives and renounces any right of
acceptance/rejection of all Software, it being understood that Company is relying upon its rights under
this Section 11. The Parties agree that the warranties and remedies with respect to Software and
Maintenance set forth in this Section 11 shall constitute Trend Micro’s sole and exclusive obligation and
liability and Company’s sole and exclusive right and remedy for the breach of or Software nonconformance
with the Software Limited Warranty herein granted for any Software. COMPANY
UNDERSTANDS AND AGREES THAT TREND MICRO CANNOT, AND DOES NOT HEREIN,
PROVIDE ANY WARRANTY, GUARANTEE, CONDITION, OR ASSURANCE THAT THE
DEPLOYMENT/USE OF ANY SOFTWARE (EITHER BY ITSELF OR IN COMBINATION WITH
OTHER TREND MICRO PRODUCTS) WILL GUARANTEE/ASSURE COMPLETE/PERFECT
PROTECTION FROM AND AGAINST ALL PRESENT AND FUTURE SECURITY THREATS TO
COMPANY’S NETWORKS, SYSTEMS, DEVICES, AND/OR DATA AND NOTHING HEREIN THIS
AGREEMENT SHALL BE DEEMED TO IMPLY SUCH A WARRANTY, GUARANTEE,
CONDITION, OR ASSURANCE. 11.4 Disclaimer of All Other Conditions, Guarantees, and Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, COMPANY AGREES THAT TREND
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MICRO PROVIDES SOFTWARE “AS AVAILABLE” AND “AS IS, WITH ALL FAULTS” AND
WITHOUT ANY OTHER WARRANTY, CONDITION, UNDERTAKING, OR GUARANTEE OF
ANY KIND. TREND MICRO (ON BEHALF OF ITSELF AND ITS SUPPLIERS (BOTH HARDWARE
AND SOFTWARE)/LICENSORS/RESELLERS) EXPRESSLY DISCLAIMS ANY GUARANTEES,
CONDITIONS AND WARRANTIES (WHETHER STATUTORY, EXPRESS OR IMPLIED) ARISING
FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR
OTHERWISE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF:
MERCHANTABILITY; FITNESS FOR A PARTICULAR OR GENERAL PURPOSE; TITLE;
SATISFACTORY QUALITY; NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS; ABILITY TO ACHIEVE A PARTICULAR RESULT; OR OTHERWISE
ARISING FROM A STATUTE, CODE, CUSTOM, USAGE OR TRADE PRACTICE, COURSE OF
DEALING OR PERFORMANCE, OR THE PARTIES’ CONDUCT OR COMMUNICATIONS WITH
ONE ANOTHER; OR ANY WARRANTY AGAINST INTERFERENCE WITH COMPANY’S QUIET
ENJOYMENT OF ANY SOFTWARE. COMPANY UNDERSTANDS AND AGREES THAT TREND
MICRO DOES NOT WARRANT OR GUARANTEE THAT: (a) SOFTWARE WILL BE
CONTINUOUSLY AVAILABLE OR USE THEREOF UNINTERRUPTED; (b) THE FUNCTIONS
AND FEATURES CONTAINED IN SOFTWARE WILL MEET THE REQUIREMENTS OF
COMPANY OR THAT SOFTWARE WILL SATISFY ANY PARTICULAR BUSINESS,
TECHNOLOGICAL, SERVICE, SECURITY, OR OTHER NEEDS OR REQUIREMENTS OF
COMPANY; (c) SOFTWARE, UPDATES THERETO, OR MAINTENANCE THEREOF ARE FREE
OF DEFECTS, PROBLEMS, BUGS, AND ERRORS OR THAT ALL DEFECTS, PROBLEMS, BUGS
OR ERRORS WILL BE DETECTED OR CORRECTED; (d) SOFTWARE WILL DETECT ONLY,
ANY, OR ALL SECURITY OR MALICIOUS CODE THREATS; OR (e) USE OF SOFTWARE AND
UPDATES WILL KEEP COMPANY’S NETWORKS OR COMPUTER SYSTEMS AND DEVICES
FREE FROM ALL VIRUSES OR OTHER MALICIOUS/UNWANTED CONTENT OR SAFE FROM
INTRUSIONS OR OTHER SECURITY ATTACKS/BREACHES. 12. Exclusions from and Limitation of
Liability; Maximum Liability. 12.1 Exclusions from Liability. IN NO EVENT OR CIRCUMSTANCE
AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE),
CONTRACT, UNDER ANY CIVIL CODE, AND/OR ANY OTHER LEGAL OR EQUITABLE
THEORY, SHALL TREND MICRO, ITS AFFILIATES, OR ITS OR THEIR SUPPLIERS (BOTH
HARDWARE AND SOFTWARE)/LICENSORS/RESELLERS, BE LIABLE TO COMPANY OR ITS
AFFILIATES OR CONTRACTORS UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS
SUBJECT MATTER FOR ANY CLAIMS, CAUSES OF ACTION, EXPENSES, LOSSES, OR
DAMAGES ARISING FROM OR RELATED TO: LOSS OF USE OF ANY NETWORKS, SYSTEMS,
SOFTWARE, HARDWARE, COMPUTERS, OR DEVICES; COMPROMISE, LOSS, OR
CORRUPTION OF DATA; LOST OR ANTICIPATED BUSINESS REVENUE; FAILURE TO
REALIZE EXPECTED SAVINGS; ANY THIRD PARTY CLAIM AGAINST COMPANY;
REDUCTION IN REPUTATION, OR GOODWILL; PROCUREMENT OF SUBSTITUTE GOODS,
SOFTWARE OR SERVICES; LOSS OF BUSINESS OPPORTUNITY OR ANTICIPATED SAVINGS;
OR OTHERWISE FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, TREND
MICRO’S (OR ITS AFFILIATES) PERFORMANCE UNDER THIS AGREEMENT, OR ANY
PRODUCT, UPDATES, AND/OR MAINTENANCE, WHETHER OR NOT FORESEEABLE, EVEN IF
THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE AND EVEN IF TREND MICRO AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF
THE POSSIBILITY OR PROBABILITY OF SUCHDAMAGES. IF COMPANY IS IN THE
EUROPEAN ECONOMIC AREA, REFERENCES TO “INCIDENTAL, PUNITIVE, EXEMPLARY,
INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES” SHALL ALSO MEAN ANY LOSSES
OR DAMAGES WHICH: (a) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES; (b)
WERE KNOWN TO COMPANY BUT NOT TO TREND MICRO; AND/OR (c) WERE
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REASONABLY FORESEEABLE BY BOTH PARTIES BUT COULD HAVE BEEN PREVENTED BY
COMPANY SUCH AS, FOR EXAMPLE, LOSSES CAUSED BY VIRUSES, MALWARE, OR OTHER
MALICIOUS PROGRAMS, OR LOSS OF OR DAMAGE TO COMPANY DATA. 12.2 Maximum
Liability – Direct Damages. WITH RESPECT TO THIS AGREEMENT AND THE SUBJECT MATTER
HEREOF OR TREND MICRO’S PERFORMANCE HEREUNDER, IN NO EVENT OR
CIRCUMSTANCE AND UNDER NO LEGAL THEORY, WHETHER BASED ON CONTRACT;
EXPRESS OR IMPLIED OR STATUTORY WARRANTY, CONDITION OR GUARANTEE;
MISREPRESENTATION; TORT (INCLUDING NEGLIGENCE); UNDER ANY CIVIL CODE;
AND/OR ANY OTHER OR EQUITABLE THEORY LEGAL THEORY, WILL TREND MICRO’S
LIABILITY TO COMPANY FOR ACTUAL DIRECT DAMAGES EXCEED IN THE AGGREGATE
FOR ALL CLAIMS (AND NOT PER INCIDENT OR PER CLAIMANT) AND/OR CAUSES OF
ACTION UNDER THIS AGREEMENT, THE TOTAL AMOUNT OF LICENSE FEES AND OTHER
AMOUNTS PAID OR PAYABLE BY COMPANY FOR THE PRODUCT GIVING RISE TO SUCH
CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR
CIRCUMSTANCE FIRST GIVING RISE TO A CLAIM. 12.3 Exceptions; Unenforceability.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 12 TO THE CONTRARY,
TREND MICRO’S LIABILITY SHALL NOT BE LIMITED UNDER THIS SECTION 12 IN THE
EVENT OR CIRCUMSTANCE OF: (a) PERSONAL INJURY OR DEATH DIRECTLY
ATTRIBUTABLE TO TREND MICRO’S NEGLIGENCE; (b) EVENTS OR CIRCUMSTANCES
ARISING FROM THE INTENTIONAL, WILLFUL, OR FRAUDULENT ACTS OF TREND MICRO;
(c) BREACH OF TREND MICRO’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 10; OR
(d) PAYMENT OF MONIES BY TREND MICRO UNDER ANY INDEMNITY AGREED HEREIN.
THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS CONTAINED HEREIN THIS SECTION
12 SHALL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE BY WRITTEN WAIVER,
DISCLAIMER, LIMITATION, AND/OR EXCLUSION UNDER THE GOVERNING LAW,
REGARDLESS OF WHETHER OR NOT TREND MICRO, ITS AFFILIATES, LICENSORS,
SUPPLIERS, AND/OR RESELLERS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL
PURPOSE, BUT NOTHING HEREIN THIS SECTION 12 PURPORTS TO LIMIT TREND MICRO,
ITS AFFILIATES, LICENSORS, AND/OR SUPPLIERS LIABILITY TO THE EXTENT OR IN A
MANNER THAT WOULD BE IMPERMISSIBLE, UNENFORCEABLE OR VOID UNDER THE
GOVERNING LAW. 12.4 Basis of the Bargain. Each Party recognizes and agrees that the waivers,
warranty limitations, as well as disclaimers and exclusions from and limitations of liability and/or
remedies in this Agreement are a material and essential basis of this Agreement; reflect a reasonable
allocation of risk between the Parties; are fair, reasonable, and a fundamental part of this agreement; and
each has been taken into account and reflected in determining the consideration to be given by each Party
under this Agreement and in the decision by each Party to enter into this Agreement. The Parties
acknowledge and agree that absent any of such waivers, disclaimers, exclusions, and/or limitations of
liability/remedies, the provisions of this Agreement, including the economic terms, would be substantially
different, or in the alternative, this Agreement would not have been consummated. 13. Intellectual
Property Indemnity. 13.1 IP Claim Indemnity. Trend Micro (at its cost) will defend ONLY Company
from each IP Claim and indemnify Company from the resulting costs and damages with respect to each
such IP Claim finally awarded against Company ONLY that are specifically attributable to such IP Claim
or those amounts agreed to by Trend Micro in a monetary settlement of such IP Claim, subject always to
the conditions, qualifications and limitations in this Section 13. No settlement of any IP Claim will be
made by Company (and Trend Micro will have no responsibility or obligation hereunder or otherwise
therefor) without Trend Micro’s express written consent, which may be withheld at its sole and absolute
discretion. The obligation of Trend Micro under this Section 13 for any IP Claim is subject to and
conditioned on Company giving Trend Micro: (a) prompt written notice of any IP Claim (but in any event
notice in sufficient time for Trend Micro to respond without prejudice to its position), provided that a
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failure to provide notice shall only relieve Trend Micro of its indemnity obligation to the extent Trend
Micro was prejudiced by such failure; (b)sole and complete control and authority over the defense,
negotiations, and settlement of such IP Claim; and (c) reasonable requested information, cooperation and
assistance, at Trend Micro’s expense, with regard to the defense, negotiations, or settlement of such IP
Claim. Without Company’s consent, Trend Micro will not settle with respect to Company, any IP Claim
to the extent such settlement requires that Company admit any liability on the part of Company with
respect to such IP Claim or pay any money therefor. Company may participate in the defense of any IP
Claim at its cost with counsel of its selection. 13.2 Exclusions. Trend Micro will have no obligation under
this Section 13 or otherwise with respect to any IP Claims arising out of, based on, or related to the
following: (a) any use of the Software not in accordance with this Agreement or its Documentation; (b)
any modification of the Software not made by Trend Micro;(c) Trend Micro’s compliance with
Company’s design, equipment or software requirements,specifications orinstructions; (d) any use of any
version, revision, or enhancements of the Software by Company other than the most current noninfringing
release made available to Company at no charge if such current version would have avoided the
IP Claim; (e) any Open Source Software; or (f) any use of the Software in combination with other
products, equipment, software, services, data, or technology not specified by the applicable
Documentation where the IP Claim would not have arisen or would have been avoided but for such
combination. 13.3 IP Claim Mitigation. Should any Software at any time become, or in Trend Micro’s
opinion be likely to become, the subject of an IP Claim, Trend Micro shall have the right, at its sole option
to: (a) procure for Company the right to continue using the Software as licensed hereunder, or (b) modify
the Software such that it no longer is the subject of an IP Claim, while maintaining substantially the same
functionality of the unmodified Software. If neither (a) or (b) are commercially practicable in Trend
Micro’s opinion, Trend Micro may terminate this Agreement as to such Software and any related license
granted hereunder as to the Software upon written notice, in which event Company will cease further use
of the Software and return or uninstall and irrevocably destroy all copies of the subject Software (and
Documentation) and, thereafter, Trend Micro will promptly refund to Company, the prorated portion of
the license fees paid by Company for the remainder of any unexpired Subscription Period for such
Software(s) or, if and to the extent such Software are licensed for a Perpetual Period, Trend Micro shall
refund to Company all license fees paid by Company for the affected Software as amortized on a straight
line basis over a three (3) year period and any unused, prepaid annual Maintenance fees. The Parties agree
that any termination hereof in accordance with this Section 13 shall not be treated as a breach of this
Agreement by Trend Micro and shall not entitle Company to any claim for damages, losses, or expenses
of any kind or nature arising from or related to such termination including for replacement cost or loss of
use of the Software or any lost profits, savings, or revenue arising from or related to the Software. This
Section 13 states Trend Micro’s sole and exclusive obligation and liability to Company, and Company’s
sole and exclusive right and remedy against Trend Micro, for any IP Claim. Except as set forth herein this
Section 13, Company acknowledges and agrees that no indemnity is given by Trend Micro with respect to
any Software or Appliance and Trend Micro specifically denies and disclaims any obligation to indemnify
Company and/or its Affiliates from and against any other matter or thing in any event or circumstance. 14.
Personal Data. Company acknowledges that Products licensed hereunder may utilize applications, tools,
and procedures to, among other things, receive, collect, transfer, store, and use Company Data (some of
which may be GDPR Data and/or Personal Data). Trend Micro has implemented and will maintain
commercially reasonable technical, organizational and administrative security measures designed to
protect the Personal Data it processes for Company from unauthorized access and misuse while under
Trend Micro’s custody and/or control. Trend Micro restricts its personnel from processing of Personal
Data without proper authorization and imposes appropriate obligations upon its personnel, regarding
confidentiality, data protection, and data security of such Personal Data. For additional information on the
foregoing, please consult and review the Documentation for each licensed Product, Trend Micro’s Global
Privacy Notice, and the additional external information therein referenced in the Global Privacy Notice, as
well as Section 2.7 that is applicable to Company’s Personal Data in most instances. 15. Assignability.
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Subject to limited transfer rights of Standalone Software offered in Section 2.1, Company may not assign
all or any portion of this Agreement, whether by contract, operation of law or otherwise, to any person,
including any Affiliate, without written approval from Trend Micro, which approval may be withheld or
conditioned at the sole discretion of Trend Micro. Any purported assignment by Company shall be void.
Trend Micro may assign this Agreement, in whole or part, and delegate its obligations to qualified third
parties or Trend Micro Affiliates, provided that no delegation of its obligations shall relieve Trend Micro
of its obligations under this Agreement. 16. Waiver; Severability; Enforcement. 16.1 Waiver. A Party’s
failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to
enforce that provision or any other provision of this Agreement at any time. No waiver of any provision of
this Agreement will be valid unless in writing, specifying the provision to be waived, and signed by the
Party agreeing to the waiver. 16.2 Severability; Enforcement. The unenforceability of any provision or
provisions of this Agreement shall not impair the enforceability of any other part of this Agreement. In the
event that any provision of this Agreement conflicts with the governing law under which this Agreement
is to be construed or if any such provision is held invalid or unenforceable in whole or in part by a court
with jurisdiction over the Parties, such provision shall be deemed to be restated to the minimum extent
necessary to render it valid, enforceable, and insofar as possible, reflect as nearly as possible the original
intentions of the Parties. The remaining provisions of this Agreement and the application of the
challenged provision to persons or circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable in
accordance herewith. 17. Export/Import Control. The export or re-export of Software (and related
technical data and services) and/or an Appliance (collectively “Controlled Technology”) is subject to
Applicable Laws with respect to the export (including “deemed export” and “deemed re-export”
regulations) and import of Controlled Technology by Company and/or its Affiliates. Company agrees that
it will at all times comply with each Applicable Law (now or hereafter in effect) that applies to
direct/indirect export, re-export, or import of Controlled Technology by Company and/or its Affiliates
and/or the performance of Company and/or its Affiliates hereunder that: (a) requires a license to, or
otherwise prohibits the, export, re-export, import, diversion, or disclosure of such Controlled Technology;
(b) prohibits or restricts sale, use, or access to certain technology/goods/services, to specified countries,
and/or by defined persons; or (c) restricts or prohibits end-use of such Controlled Technology related to
the development, production, use, or proliferation of nuclear, chemical or biological weapons, missiles, or
other weapons of mass destruction. Company represents and warrants to Trend Micro that neither
Company nor any of its Affiliates are under the control of, located in, or a resident or national of any
country or region subject to any embargo or applicable trade sanction and are not a prohibited person or
entity as defined in any Applicable Law. 18. Government Agency Use. All Products (including Software
and Appliances) and accompanying Documentation have been developed solely at private expense by
Trend Micro and/or its suppliers/licensors/resellers, consisting of commercially-available computer
software, commercially-available hardware and appliances, and commercially-available documentation.
The acquisition, deployment, duplication, disclosure, and use of Software (as Updated) by any
Government Agency may be subject to mandatory Applicable Laws, however, except for the limited
license granted in Section 2 above to any Software, no right, title, or interest in or to any Software (or
Updates and Documentation) is granted or transferred hereunder to any Government Agency licensing
such Software. If any Government Agency requires or needs greater or different rights in or to Software
other than those rights that are granted in Section 2, the Parties will discuss such additional requirements
and the additional fees/charges applicable thereto, and if additional or different rights are agreed, the
Parties will enter into a specific written agreement with respect thereto. In this Section, “Government
Agency” shall mean a national, federal, provincial, state, municipal, and/or local governmental agency or
entity in the Territory that acquires Products from Trend Micro under this Agreement for use by such
Government Agency. 19. WEEE Directive. Trend Micro complies with the WEEE regulations. For
information on the disposal of electronic waste, visit http://uk.trendmicro-europe.com/recycle. 20. Force
Majeure. If a Party’s performance of any non-monetary obligation under this Agreement is prevented by
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earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, cyber-attacks, armed conflict,
labor strike, lockout, or boycott, the affected Party will be excused from such performance, provided the
affected Party: (a) provides prompt written notice of such interference, the nature of such interference and
the expected duration of such interference to the other Party; (b) takes all steps reasonably necessary
under the circumstances to mitigate the effects of the interfering condition; and (c) resumes performing its
affected obligations hereunder promptly following the removal of such interfering condition. The other
Party will be relieved from performing its affected obligations under this Agreement for the duration of
such interference. Such delay or failure shall not constitute a breach of this Agreement. 21. No Third
Party Beneficiaries. To the maximum extent permissible by written waiver, disclaimer, limitation, and/or
exclusion under Applicable Laws, this Agreement is entered into solely between and for the benefit of,
and may be enforced only by, the Parties hereto and no third party shall have any right/benefit hereunder,
whether arising hereunder, under any statute now or hereafter enacted (such as Contracts (Rights of Third
Parties) Act of 1999 in the UK and similar laws enacted in Ireland, Singapore, New Zealand, Hong Kong
S.A.R., and certain states of Australia, the application of each of which is hereby barred and disclaimed),
or otherwise. This Agreement does not, and shall not be deemed to, create any express or implied rights,
remedies, benefits, claims, or causes of action (legal, equitable or otherwise) in or on behalf of any third
parties including employees, independent consultants, agents, and Affiliates of a Party, or otherwise create
any obligation or duty to any third party; provided, however, notwithstanding anything contained herein
this Agreement to the contrary, Trend Micro’s hardware suppliers, software licensors, and Resellers shall
be intended third party beneficiaries for the exclusions, limitations, and disclaimers with respect to
Products as stated in Sections 7.2, 11.4, and 12 of this Agreement. 22. Term; Expiration/Termination.
This Agreement and the license rights granted hereunder to: (1) any Standalone Software or Test Software
licensed for a Subscription Period shall remain in effect until the term of the license (as may be reflected
on the applicable License Certificate) automatically expires; but (2) any Standalone Software (and any
Updates thereto purchased by Company) that is licensed for a Perpetual Period shall continue to be
licensed indefinitely hereunder (each a “Term”); provided, however, the Term is subject to earlier
termination by either Party as set forth in this Section or elsewhere in this Agreement. Company may
terminate this Agreement as to any or all Software licensed hereunder for any or no reason, effective upon
notice to Trend Micro. Trend Micro may terminate this Agreement to any or all Software licensed
hereunder, effective upon written notice to Company, if Company, materially or persistently breaches this
Agreement asto such Software and such breach: (a) isincapable of cure such as breach of, or
noncompliance with, Trend Micro’s intellectual property rights; or (b) if being capable of cure (such as
non-payment of monies then-past-due to Trend Micro or a Reseller for Product), remains uncured for
fourteen (14) days after Trend Micro provides notice of such breach to Company. In addition, Trend
Micro may, at its option, terminate this Agreement as to any or all Software licensed hereunder if
permitted under Applicable Law, effective immediately, if Company files, or has filed against it, a petition
for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes orseeks to make a
general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a
trustee, receiver, or custodian for a substantial part of its property. Upon expiration or earlier termination
of this Agreement as to all or a portion (as the case may be) of Software licensed hereunder, the licenses
granted hereunder to such expiring or terminating Software (and its Documentation) shall immediately
terminate, and Company shall immediately cease use thereof and will uninstall and destroy all copies of
the Software (and Documentation) and certify the same to Trend Micro in writing. No expiration or
termination shall affect Company’s obligation to pay all charges and fees that may have become due
before such expiration or termination, or entitle Company to any partial or full refund of amounts already
received by Trend Micro, except as specifically set forth in Sections 11.1 and 13.3. 23. Trend Micro
Licensing Entity; Governing Law; Dispute Resolution; Arbitration; Venue/Jurisdiction. 23.1 General;
Trend Micro Licensing Entity. The Parties agree that the specific Trend Micro entity that is the Party to
this Agreement for each individual transaction shall be the Trend Micro entity/Affiliated that is stipulated
below and such entity shall be conclusively be deemed for all purposes, to be the Trend Micro Party to
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this Agreement and to the Data Processing Addendum, and the publisher/licensor of Software,supplier of
Appliances, and/or provider of Maintenance, that is procured by Company hereunder (in each instance,
the “Licensing Entity”). The Parties agree that the governing law (without giving effect to its rules and
principles relating to conflict of laws) as determine and agreed in this Section 23 shall solely and
exclusively apply to and govern, interpret, and sets forth all of Trend Micro’s and Company’s respective
rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this
Agreement and the Products provided/secured hereunder. The United Nations Convention on Contracts
for the International Sale of Goods does not apply to, and is specifically excluded from application hereto,
in any event orcircumstance. 23.2 North America: If Company is located (as evidenced by the License
Certificate) in the United States of America or Canada, the Licensing Entity of Product is stipulated as:
Trend Micro Incorporated, 225 E. John Carpenter Freeway, Suite 1500, Irving, TX 75062, USA. The
Parties agree that this Agreement is solely and exclusively governed by the laws of the State of New
York, USA. The Parties agree that the provisions of the Uniform Computer Information Transactions Act
(“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this
Agreement, and the Parties waive any and all rights they may have under any laws(s) adopting UCITA in
any form. The Parties mutually agree to and do hereby irrevocably submit and consent to the sole and
exclusive in personam jurisdiction of: (a) the United States District Court for the Southern District of New
York, located in the County of New York, but if such court shall determine that it does not and cannot
have subject matter jurisdiction over such action, matter, or proceeding; then to, (b) the Supreme Court of
the State of New York, located in the County of New York that will have such sole and exclusive in
personam jurisdiction over such action, matter, or proceeding. In Canada, the following language shall
apply hereto: The Parties have required that this Agreement be drawn up in English and have also agreed
that all notices or other documents required by or contemplated in this Agreement be written in English.
Les Parties ont requis que cette convention soit rédigée en anglais et ont également convenu que tout avis
ou autre document exigé aux termes des présentes ou découlant de l’une quelconque de ses dispositions
sera préparé en anglais. 23.3 Central America and South America (except Brazil and Colombia). If
Company is located (as evidenced by the License Certificate) in Central America or South America (other
than Brazil and Colombia), the Licensing Entity of Product is stipulated as: Trend Micro Latinoamérica,
S. A. de C. V., Insurgentes Sur No. 813, Piso 11, Col. Nápoles, 03810 México, D. F. The Parties agree
that this Agreement is solely and exclusively governed by the federallaws of the Republic of Mexico. The
courts located in Mexico City, Federal District, shall each have exclusive jurisdiction over all disputes
arising out of or relating to this Agreement or its subject matter. 23.4 Brazil. If Company is located (as
evidenced by the License Certificate) in Brazil, the Licensing Entity of Product is stipulated as: Trend
Micro do Brasil, LTDA, Rua Joaquim Floriano, 1.120 – 2º andar, CEP 04534-004, São Paulo/Capital,
Brazil. The Parties agree that this Agreement is solely and exclusively governed by the federal laws of
Brazil. The courts located in São Paulo, Brazil shall each have exclusive jurisdiction over all disputes
arising out of or relating to this Agreement or its subject matter. 23.5 Colombia. If Company is located (as
evidenced by the License Certificate) in Colombia, the Licensing Entity of Product is stipulated as: Trend
Micro Colombia, S.A.S., Calle 97ª# 9ª -50 of. 503, Bogotá, Colombia. The Parties agree that this
Agreement is solely and exclusively governed by the laws of Colombia. The courts located in Bogotá,
Colombia shall each have exclusive jurisdiction over all disputes arising out of or relating to this
Agreement or its subject matter. 23.6 Europe (as limited below) and Israel: If Company is located (as
evidenced by the License Certificate) in European Economic Area (EEA), the United Kingdom if such be
necessary for post-Brexit separation, Switzerland, or Israel, the Licensing Entity of Product in all
instances is stipulated as: Trend Micro Ireland Limited, a company incorporated in Ireland under number
364951and having its registered office at IDA Business and Technology Park, Model Farm Road, Cork,
Ireland. The Licensing Entity and Company referenced in this Section 23.6, agree that this Agreement, the
performance of the Parties hereunder, and all disputes arising out of or related hereto will be governed by
and construed solely in accordance with the laws of Ireland. The Parties irrevocably consent and agree to
the sole and exclusive in personam jurisdiction of the courts sitting in Ireland with respect to any dispute
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that cannot be resolved by the Parties and all proceedings with respect thereto shall be litigated and
determined solely and exclusively in such courts. Each of the Parties represents and agrees that such in
personam jurisdiction is reasonable and fair and hereby waives any objection which it may now or
hereafter have based on improper venue or forum non conveniens in such courts. 23.7 Russia, Turkey,
Middle East (other than Israel) and Africa: If Company is located (as evidenced by the License
Certificate) in Russia, Turkey, Africa, or the Middle East (other than Israel), the Licensing Entity of
Product in all instances is stipulated as: Trend Micro DMCC, a limited liability company incorporated in
United Arab Emirates having its registered office at Unit 3301, Swiss Tower, Plot No: JLT-PH2-Y3A,
Jumeirah Lakes Towers, Dubai, United Arab Emirates. The Licensing Entity and Company referenced in
this Section 23.7, agree that this Agreement, the performance of the Parties hereunder, and all disputes
arising out of or related hereto will be governed by and construed solely in accordance with the laws of
England and Wales. The Parties irrevocably consent and agree to the sole and exclusive in personam
jurisdiction of the courts sitting in England with respect to any dispute that cannot be resolved by the
Parties and all proceedings with respect thereto shall be litigated and determined solely and exclusively in
such courts. Each of the Parties represents to the other Party and agrees that such in personam jurisdiction
is reasonable and fair and hereby waives any objection which it may now or hereafter have based on
improper venue or forum non conveniens in such courts. 23.8 Asia Pacific: If Company is located (as
evidenced by the License Certificate) in Australia, New Zealand, India, Malaysia, the Philippines, or
Thailand, the Licensing Entity of Product in all instances is stipulated as: Trend Micro Australia Pty
Limited, Level 15, 1 Pacific Highway, North Sydney, New South Wales, 2060, Australia. If Company is
located (as evidenced by the License Certificate) in Singapore, Vietnam or Indonesia, the Licensing Entity
of Product in all instances is stipulated as: Trend Micro Singapore Pte Ltd., 6 Temasek Boulevard #16-01
Suntec Tower Four, Singapore. If Company is located (as evidenced by the License Certificate) in
Taiwan, Republic of Korea, Hong Kong SAR, or Macau SAR, the Licensing Entity of Product in all
instances is stipulated as: Trend Micro Inc., 8F, No.198, Tun-Hwa S. Road, Sec. 2, Taipei 106, Taiwan,
Republic of China. If Company is located (as evidenced by the License Certificate) in the Peoples
Republic of China, the Licensing Entity of Product in all instances is stipulated as: Trend Micro (China)
Inc., R23, 14F, No.800 Shangcheng Rd., Pudong District, Shanghai, China 20020. .1 If Company is
located (as evidenced by the License Certificate) in Australia or New Zealand, this Agreement is
governed by the laws of New South Wales, Australia. The Parties agree that the courts located in New
South Wales shall have exclusive jurisdiction over all disputes arising out of or relating to this Agreement
or its subject matter. Notwithstanding anything contained in Section 11 of this Agreement, if the
Australian Competition and Consumer Act 2010 is applicable to the instant transaction (and not otherwise
subject to an effective exclusion or waiver under Section 11) and Trend Micro is in breach of a guarantee
implied by such Act, Trend Micro’s liability is limited to the repair or replacement of goods/software or
the supply of equivalent goods/software, or the payment of the cost of replacing the goods/software or
having the good/software repaired where reasonable. Where a guarantee relates to the right to sell, quiet
possession, or clear title of a good/software under schedule 2 of the Competition and Consumer Act, then
none of these limitations apply. .2 If Company is located (as evidenced by the License Certificate) in
Hong Kong SAR or Macau SAR, this Agreement is governed by the laws of Hong Kong SAR. The
Parties agree that the courts located in Hong Kong SAR shall have exclusive jurisdiction over all disputes
arising out of or relating to this Agreement or its subject matter. .3 If Company is located (as evidenced by
the License Certificate) in Taiwan, this Agreement is governed by the laws of Taiwan, without regard to
its principles of conflicts of law. The Parties agree that the courts located in Taiwan shall have exclusive
jurisdiction over all disputes arising out of or relating to this Agreement or its subject matter. .4 If
Company is located (as evidenced by the License Certificate) in the Republic of Korea, this Agreement is
governed by the laws of the Republic of Korea. The Parties agree that the courts located in the Seoul
Central District Court of the Republic of Korea shall have exclusive jurisdiction over all disputes arising
out of or relating to this Agreement or its subject matter. .5 If Company is located (as evidenced by the
License Certificate) in Singapore, India, Indonesia, Malaysia, the Philippines, Vietnam, or Thailand, this
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Agreement and the agreement to arbitrate is governed by the laws of Singapore, without regard to its
principles of conflicts of law. The following Irrevocable Mandatory Agreement to Arbitrate with respect
to matters set forth in and governed by this Section 23.8.5 (only) is hereby irrevocably agreed by the
Parties: a. The Parties irrevocably agree that each controversy, dispute, or claim in any way arising from,
pertaining to, or in connection with this Agreement, any Products, or the performance/non-performance of
both or either Party (each a “Dispute”) will be solely and exclusively resolved by mandatory and binding
arbitration that is administered by Singapore International Arbitration Center (“SIAC”) which will be held
and conducted in Singapore in accordance with the Arbitration Rules of Singapore International
Arbitration Center (″SIAC Rules″) on the Publication Date. The arbitration award will be final and
binding for the Parties without appeal and will be in writing and set forth the findings of fact and the
conclusions of law. In arriving at their award, the arbitrators shall make every effort to find a solution to
the Dispute in the language of this Agreement and shall give full effect to all provisions hereof. However,
if a solution cannot be found in the language of this Agreement, the arbitrators shall exclusively apply the
substantive law of Singapore existing on the Publication Date hereof and are specifically divested by the
Parties of any power or authority to: (i) apply any principles that would permit them to ignore this
Agreement, or (ii) apply the law of any jurisdiction other thanSingapore. b. The number of impartial
arbitrators will be three (3), with each Party being entitled to appoint one arbitrator. The two (2)
arbitrators appointed by the Parties will appoint a third arbitrator (who must be a lawyer with a
multinational law firm and have a minimum of ten (10) years of experience in the field of computer
software development, licensing, and distribution) who will act as chairman of the proceedings, or if no
agreement is reached by such arbitrators within twenty (20) days of the last to be appointed, then the post
of chairman will be filled by the president of SIAC at the request of either Party. Vacancies in the post of
chairman will be filled by the president of SIAC in accordance with the SIAC Rules. Other vacancies will
be filled by the respective nominating Party. Proceedings will continue from the stage they were at when
the vacancy occurred. c. If one of the Parties refuses or otherwise fails to appoint an arbitrator within
thirty (30) days of the date the other Party appoints its arbitrator, the Parties irrevocably agree that the first
appointed arbitrator will be the sole arbitrator, provided that such arbitrator was validly and properly
appointed in accordance with the SIAC Rules unless such sole arbitrator appointment shall be void or
voidable under SIAC Rules, in which event a sole arbitrator having the qualifications of the chairman will
be appointed by the president of SIAC in accordance with the SIAC Rules. d. All proceedings will be
conducted, including all documents presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language version. .6 If Company is located (as
evidenced by the License Certificate) in the People’s Republic of China, this Agreement is governed by
the laws of China, without regard to its principles of conflicts of law. The following Irrevocable
Mandatory Agreement to Arbitrate with respect to matters set forth in and governed by this Section 23.8.6
(only) is hereby irrevocably agreed by the Parties: a. The Parties irrevocably agree that each Dispute
arising from or related to this Agreement, any Products, or the performance/nonperformance of both or
either Party will be finally settled by arbitration that is administered by Beijing Arbitration Commission
(“BAC”) which will be held and conducted in Beijing in accordance with the Arbitration Rules of Beijing
Arbitration Commission (“BAC Rules”) on the Publication Date. The arbitration award will be final and
binding for the Parties without appeal and will be in writing and set forth the findings of fact and the
conclusions of law. b. The number of arbitrators will be three (3), with each Party being entitled to select
one arbitrator or authorize the chairman of the BAC to appoint one arbitrator. The third arbitrator shall be
selected jointly by the Parties or nominated by the chairman of the BAC in accordance with a joint
mandate given by the Parties. The third arbitrator shall be the presiding arbitrator. c. All proceedings will
be conducted, including all documents presented in such proceedings, in the Simplified Chinese language.
The Simplified Chinese language version of this Agreement prevails over any other language version.
23.9 Other Countries in the Territory Not Listed Above. If Company is located in any country or region
not listed in any other subsection of this Section 23 (as evidenced by the License Certificate), the
Licensing Entity of Product in each instance is stipulated as the Trend Micro Affiliate stated in the
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License Certificate. In each such instance, the Parties agree that this Agreement, the performance of the
Parties hereunder, and all disputes arising out of or related hereto will be governed by and construed
solely in accordance with the laws of England and Wales. The Parties irrevocably consent and agree to the
sole and exclusive in personam jurisdiction of the courts of England with respect to any dispute that
cannot be resolved by the Parties and all proceedings with respect thereto shall be litigated and
determined solely and exclusively in such courts. Each of the Parties represents to the other Party and
agrees that such in personam jurisdiction is reasonable and fair and hereby waives any objection which it
may now or hereafter have based on improper venue or forum non conveniens in such courts. 23.10
Provisional Remedies; No Waiver. Notwithstanding the Parties agreement to arbitrate in Sections 23.8.5
or 23.8.6 as the case may be, a Party may apply at any time to any court or courts having jurisdiction over
the relevant Party or Parties for an order (that is NOT dispositive or final of any Dispute), including, but
not limited to, an ex parte temporary restraining order, temporary injunction proceedings, or other
provisional or interim/ancillary remedies or equitable relief (each a “Temporary Action”) seeking
protection: (1) of its Confidential Information provided hereunder as described in Section 10; or (2) from
a breach of or non-compliance with any Software license grant in Section 2 of this Agreement or from
infringement, misappropriation, or a violation of such applying Party’s intellectual property rights
forming a part of any Product or otherwise, including any and all rights protectable under intellectual
property laws anywhere in the world such as (by way of example) patent, copyright, trade secret, and
trademark law; provided, however, no such Temporary Action shall be a final disposition of any matter to
be submitted to arbitration nor it shall compromise, limit, or avoid the sole and exclusive right of the
arbitrators to decide and finally dispose of all Disputes subject to arbitration hereunder, including, without
limitation, granting temporary or permanent relief of the subject of any request for Temporary Action.
The institution and maintenance of a Temporary Action shall not be deemed an election of remedies or
constitute a waiver or abrogation (in whole or in part) of the agreed right and obligation of each Party,
including the plaintiff in any arbitration or Temporary Action, to submit each and every Dispute to
arbitration, nor supersede or render inapplicable (all or in part) the agreed compulsory arbitration
provisions of this Agreement. End of the Agreement.
Hornetsecuirty
END USER LICENSE AGREEMENT
IMPORTANT! READ CAREFULLY. THE FOLLOWING IS A LEGALLY BINDING
AGREEMENT.
Version: [1.3]
Date: 1st July 2022
This License Agreement (“License”) is a legal agreement between you (End-User or
you) and HORNETSECURITY LIMITED, a limited liability company organized and
existing under the laws of Malta, located at Hornetsecurity Limited, Block LS3 (Digital
Hub), Level 1, Malta Life Sciences Park, San Gwann Industrial Estate, San Gwann,
SGN3000, Malta (Hornetsecurity, Licensor, us or we). These terms shall regulate the
use of Hornetsecurity’s product and software solution that are listed in the relative
order form, or otherwise accompany this EULA (“the Licensed Software”), and our
respective rights and obligations.
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BEFORE YOU SELECT THE “I ACCEPT” BUTTON AT THE BOTTOM OF THIS WINDOW,
CAREFULLY READ EACH PROVISION OF THIS AGREEMENT. BY CLICKING ON THE “I
ACCEPT” BUTTON AND/OR DOWNLOADING OR INSTALLING THE LICENSED
SOFTWARE YOU WARRANT AND REPRESENT THAT:
• YOU ARE OVER THE AGE OF 18, YOU ARE OF THE LEGAL AGE REQUIRED IN YOUR
STATE, PROVINCE, JURISDICTION OR RESIDENCE AND YOU ARE LEGALLY CAPABLE
OF ENTERING INTO THIS AGREEMENT; • YOU HAVE THE CAPACITY AND AUTHORITY
TO BIND YOURSELF AND/OR THE PERSON/ENTITY IN WHOSE NAME THIS LICENSE
IS BEING PURCHASED, AS APPLICABLE, TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT;
• ON BEHALF OF YOURSELF AND/OR AS AN AUTHORISED 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
• YOU ARE A BUSINESS USER AND THAT YOU ARE ACTING IN A BUSINESS OR
PROFESSIONAL CAPACITY. YOU ARE NOT ABLE TO USE OUR LICENSED SOFTWARE
IF YOU ARE DEEMED TO BE A CONSUMER IN TERMS OF CONSUMER LAWS. 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 LICENSED SOFTWARE. ANY USE OF THE LICENSED SOFTWARE OTHER THAN
PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT IS A VIOLATION
OF COPYRIGHT LAWS AND CONVENTIONS. IF YOU QUALIFY AS A CONSUMER FOR
THE PURPOSES OF THE CONSUMER AFFAIRS ACT (CHAPTER 378 OF THE LAWS OF
MALTA), YOU ACKNOWLEDGE THAT UPON DOWNLOADING THE LICENSED
SOFTWARE ONTO YOUR CHOSEN MEDIUM YOU RELINQUISH YOUR RIGHT TO
WITHDRAW FROM THE CONTRACT ACCORDING TO LAW. BY CLICKING THE “I
AGREE” BUTTON BELOW YOU ARE ACCEPTING THIS LIMITATION TO YOUR RIGHT
TO WITHDRAW FROM THE CONTRACT UPON DOWNLOADING THE LICENSED
SOFTWARE. IF YOU DO NOT DOWNLOAD THE LICENSED SOFTWARE
IMMEDIATELY, YOUR RIGHT TO FREELY WITHDRAW FROM THIS AGREEMENT IS
LIMITED TO FOURTEEN (14) DAYS FROM CLICKING THE “I ACCEPT” BUTTON
BELOW.
IF YOU CHOOSE THE “I DECLINE” BUTTON, OR IF YOU ARE A CONSUMER AND YOU
WITHDRAW FROM THIS AGREEMENT AS EXPRESSLY AUTHORISED AS PER THE
ABOVE, YOU MAY RETURN THE LICENSED SOFTWARE TO THE AUTHORISED
RESELLER OR DEALER FROM WHOM YOU OBTAINED IT FOR A FULL REFUND, OR
CONTACT THE LICENSOR THROUGH ITS CUSTOMER CARE PROCEDURE ON ITS
WEBSITE, PROVIDED THAT YOU DO SO WITHIN THIRTY (30) DAYS FROM THE DATE
OF YOUR PURCHASE AND THE LICENSED SOFTWARE IS ACCOMPANIED BY ALL
ORIGINAL DOCUMENTATION, PACKAGING MATERIALS AND PROOF OF PURCHASE.
OPERATING SYSTEM REQUIREMENTS: The Licensed Software will only operate on
hardware and systems that meet certain requirements as indicated and listed on the
Licensor’s website at https://support.hornetsecurity.com These requirements may be
changed from time to time. It is in your interest to ensure that your operating system
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meets the published requirements at all times.
1. Preamble. The Licensed Software is proprietary to the Licensor and is protected by
copyright and intellectual property laws and treaties. This software product and the
accompanying documentation is licensed, not sold to you pursuant to the terms and
conditions of the End User License Agreement (“EULA”). The Licensor will remain the
owner of the Licensed Software and documentation at all times.
2. Grant of License Rights.
2.1. Production License – Subject to your payment of the applicable license fee and
full compliance with this Agreement, the Licensor grants to you the following rights:
(a) A non-exclusive and non-transferable license to install and use a single copy of
the executable code version of the Licensed Software, including any modifications,
corrections or updates supplied to you by Licensor upon installation or under a
Maintenance/Support program 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 to the number of individual “stand alone” backup drives (e.g., tape
drives, optical drives, etc.) connected to said single workstation or server unless your
purchased Production license expressly stipulates that it provides you with
additional features;
(b) The above right shall be perpetual, save for (i) termination as a result of your
breach of these terms and
(ii) the case where you are licensed under a Service Provider License Agreement
(“SPLA”), where the duration of the right will be limited to the subscription period or
as may be further regulated under the SPLA terms of the specified solution;
(c) the right to make a single copy of the Licensed Software and Documentation for
archival purposes, backup or business continuity, provided you reproduce all the
original Licensed Software’s 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
and a notice that it will not be used for transfer, distribution or sale.
2.2. Software Evaluation and Beta License
(a) We may make the Licensed Software, a part or feature thereof available as a prerelease
or beta version (“Beta Version”). You expressly acknowledge that by their
nature, such Beta Versions are work-inprogress and as a result they may contain
bugs, cause systems to crash or result in data loss. You agree to stop using such Beta
Versions when we request you to do so.
(b) Notwithstanding anything to the contrary contained in this EULA, if you are using
a Beta or an Evaluation / Trial version of the Licensed Software and Documentation,
your rights to use the Licensed Software and Documentation shall be subject to the
following limitations:
i. your non-exclusive, non-transferable 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”) or as
alternatively defined within the Beta or Early Access program;
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ii. the Licensed Software and Documentation are furnished to you “AS IS” without
warranty of any kind, including, but not limited to, implied warranties of quality and
fitness for a particular purpose;
iii. the Licensed Software and Documentation may be used solely for Non-
Commercial / Non-Production evaluation by you;
iv. the Licensed Software and Documentation are licensed to you without fee only for
the Evaluation License Period;
v. no rights of ownership, copyright or other intellectual property in the Licensed
Software are being transferred to you;
vi. at no time shall you transfer the Licensed Software or Documentation to any third
party; and,
vii. you agree to and do hereby indemnify, defend and hold harmless the 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.
(c) All terms and conditions of this EULA not specifically modified by clauses 2.2 (a)
and 2.2 (b) above shall
apply to Software licensed under an Evaluation or Beta License.
2.3 Free license
(a) On occasions, we may designate that a version of the Licensed Software is
provided for free (i.e. without payment of any license fee) (“Free Version”).
(b) The use of a Free Version is subject to any terms that are outlined in the
respective software description page or solution terms made available by the
Licensor.
(c) Without prejudice to the aforementioned, a Free Version can be used in your own
production environment in accordance with the terms and conditions of this
Agreement and notwithstanding anything to the contrary contained in this EULA, a
Free Version shall be subject to the following limitations:
i. the Free Version and Documentation are furnished to you “AS IS” without warranty
of any kind, including, but not limited to, implied warranties of quality and fitness for
a particular purpose;
ii. the Free Version and Documentation are licensed to you without fee;
iii. you may not use the Free Version to provide services to third parties, integrate
with third party software, or to process third party data. Free license versions can be
used without additional purchase.
iv. no rights of ownership, copyright or other intellectual property in the Free Version
are being transferred to you;
v. you are not entitled to support and maintenance or that Licensor provide any
assistance regarding Free Version;
vi. you agree to and do hereby indemnify, defend and hold harmless the Licensor
and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers,
distributors and authorized re-sellers from any and all claims, losses, any direct,
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actual or indirect 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 Free Version and
Documentation, your negligent or wrongful acts, and/or your violation of any
applicable laws.
(d) All terms and conditions of this EULA not specifically modified by clause 2.3 (a), (b)
and (c) above shall apply to Free Versions.
2.4 “Not for Resale” license
(a) We may also choose to make Licensed Software or certain features thereof
available for demonstration, test or internal use only purposes labelled as “Not for
Resale” (collectively “NFR Software”). The license granted under an NFR License shall
be for a term of one (1) year (the “Demonstration Period”) unless otherwise altered by
Licensor, limited specifically for demonstration, test or internal use only purposes.
Notwithstanding anything to the contrary contained in this EULA, if you acquired the
NFR Software and Documentation, your rights to use the NFR Software and
Documentation shall be subject to the following limitations:
i. you agree not to use NFR Software for resale purposes or to offer the solution for
your customers;
ii. you may not use the NFR Software to provide services to third parties, integrate
with third party software, or to process third party data.
iii. no rights of ownership, copyright or other intellectual property in the NFR
Software are being transferred to you;
iv. you agree to and do hereby indemnify, defend and hold harmless the Licensor
and its parent, subsidiary, or affiliate organizations, officers, agents, suppliers,
distributors and authorized re-sellers from any and all claims, losses, any direct,
actual or indirect 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 NFR Licensed Software and
Documentation, 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 clause 2.4 (a)
above shall apply to NFR Software.
3. Restrictions.
(a) The Licensed Software may include software components licensed to the
Licensor by third-parties, which may be subject to terms and conditions that are
different than those outlined herein. [If you would like to receive a full list of such
components, please get in touch with Hornetsecurity (Clause 17)]. You shall be
required to comply with any and all such third-party terms that apply.
(b) Notwithstanding the terms and conditions of this EULA, all or any portion of the
Licensed Software which constituted non-proprietary software provided under
public licenses by third parties (“Freeware” or “Open Source”), is licensed to you
subject to the terms and conditions of the software license agreement
accompanying such Freeware or Open Source software whether in the form of a
discrete agreement, shrink wrap license or electronic license terms accepted at the
time of download. Use of the Freeware or Open Source software by you shall be
governed entirely by the terms and conditions of such license.
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(c) You shall not do or permit others to do any of the following:
i. copy the Licensed Software and Documentation except as provided in clause 2
above modify, translate, rent, lease, copy, re-sell, transfer, assign, sub-license,
distribute, merge, vary or modify the Licensed Software and Documentation or any
part thereof to any person or entity;
ii. make alterations to, or modifications of, the whole or any part of the Licensed
Software or permit the Licensed Software or any part of it to be combined with, or
become incorporated in, any other programs or software solutions without a written
approval from Us.;
iii. save where you are expressly authorised to do so under a SPLA and within the
limitations of such SPLA, 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;
iv. remove Proprietary Matter from the Licensed Software and Documentation or
modify, alter or obscure Proprietary Matter thereon;
v. to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make
error corrections to the Licensed Software in whole or in part except as permitted by
law. Provided that where you require the aforementioned information and/or code in
order to achieve the interoperability of a computer program independently created
by yourself, you shall first request the Licensor to provide such information (at the
then applicable commercial rates). Any information and/or code so obtained
(whether provided by the Licensor or independently procured) shall not:
1. be used for purposes other than to achieve the interoperability of the computer
program independently created by you;
2. be given to other persons, except when necessary for the interoperability of the
independently created computer program;
3. be used for the development, production or marketing of a computer program
substantially similar in its expression to the original program or for any other act
which infringes copyright;
4. provide, or otherwise make available, the Licensed Software in any form, in whole
or in part (including but not limited to, program listings, public sharing website,
object and source program listings, object code and source code) to any person
other than your employees without prior written consent from us;
5. use the Licensed Software via any communications network or by means of
remote access;
6. fail to comply with all applicable technology control or Export Restrictions
(Clause10)
(d) If you are a corporation or other business entity, you shall use your best efforts to
prevent your employees, customers, contractors, subcontractors and agents from
engaging in any of the above prohibited activities and to supervise and control the
use of the Licensed Software by the said persons and ensure that the Licensed
Software is used by such employees, customers, subcontractors and
agents in accordance with the terms of this License.
(e) Although you own the media on which the Licensed Software and
Documentation are recorded, the Licensor and/or its suppliers retain all rights, title
and interest in and to (i) the Licensed Software and Documentation (including,
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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.
(f) Your rights to use the Licensed Software and Documentation shall be limited to
those expressly granted in clause 2 above. All rights not expressly granted to you are
retained by Licensor and/or its suppliers. You agree to refrain from any action that
would diminish such rights of the Licensor or would call such rights into question.
The rights granted herein are limited to the Licensor’s copyright in the Software and
do not include any other patents or intellectual property rights of the Licensor or
third parties.
(g) You hereby agree to, and do, indemnify, save and hold harmless the Licensor, its
agents, suppliers, distributors and authorised resellers 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 authorised by this EULA.
(h) Any failure to comply within clause 3 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 the Licensor.
4. Limited Warranties.
(a) Subject to the limitations and exclusions of liability below, the Licensor warrants
that the Licensed Software as delivered by the Licensor and when used in
accordance with the Documentation shall substantially conform with the functions
described in the Documentation for a period of ninety (90) days from initial Licensed
Software purchase. Licensor does not warrant that the Licensed Software will meet
all of Your requirements or that the use of the Licensed Software will be
uninterrupted or error-free. The warranty shall not apply if the Licensed Software fails
to operate in accordance with the said warranty as a result of use in breach of these
terms, accident, misuse, unauthorised repair, modification, enhancement,
misapplication or failures that are caused by other software or hardware products.
(b) For any Licensed Software that does not operate as warranted in clause 4(a)
above, the Licensor shall, at its sole discretion, promptly 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 noncompliant
Licensed Software, provided that you return the Licensed Software to the
Licensor or its authorised reseller from whom you obtained it, together with the
purchase receipt within the warranty period. This obligation of the Licensor is subject
to your obligation to make available all information requested and that may be
necessary to help the Licensor to remedy the defect or fault, including sufficient
information to enable the Licensor to recreate the defect or fault.
(c) The Licensor shall not be obliged to provide any updates for the Licensed
Software, unless expressly agreed otherwise.
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(d) You are to take all such measures as are reasonable to avoid and reduce potential
damages, such as by taking regular backups.
(e) Subject to clause 4(a) above, the software is provided to you “AS IS”. THE
LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR
ENJOYMENT OF THE SOFTWARE AND SERVICES, THAT THE FUNCTIONS
CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE
WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL
CONTINUE TO BE MADE AVAILABLE, THAT THE SOFTWARE OR SERVICES WILL BE
COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR
THIRD PARTY SERVICES, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL
BE CORRECTED. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY
OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR
AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER
EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED
WARRANTY.
(e) SAVE FOR AS PROVIDED IN clause 4 (b) ABOVE, SHOULD THE SOFTWARE OR
SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION.
(f) IF YOU ARE A CONSUMER AND THE ABOVE LIMITATIONS ON OUR WARRANTIES
ARE STATUTORILY NOT APPLICABLE IN FULL, THE RIGHTS GRANTED TO YOU AT
LAW BEYOND THAT WHICH IS WARRANTED BY US ABOVE, SHALL BE
INTERPRETED AS RESTRICTIVELY AS THE LAW ALLOWS FOR.
5. Disclaimers.
(a) THE WARRANTIES SET FORTH IN CLAUSE 4 ABOVE ARE YOUR ONLY
WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS
OR IMPLIED. THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, AND WARRANTIES OF STATUTORY NONINFRINGEMENT.
NO THIRD PARTY, INCLUDING, WITHOUT LIMITATION, THE
LICENSOR’S AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RE-SELLERS, IS
AUTHORISED TO MODIFY ANY OF THE ABOVE WARRANTIES ON BEHALF OFTHE
LICENSOR.
(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY
SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE IS
AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY,
PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
(c) YOU FURTHER ACKNOWLEDGE THAT THE LICENSED SOFTWARE AND SERVICES
ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS
WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE
CONTENT, DATA OR INFORMATION PROVIDED BY THE LICENSED SOFTWARE OR
SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF
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NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR
TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
(e) IF THE EXCLUSION OF ANY IMPLIED WARRANTIES IS RENDERED INAPPLICABLE
AS A RESULT OF STATUTORILY MANDATED RULES, OR AS DEFINED BY SOME
JURISDICTIONS, ANY SUCH IMPLIED WARRANTIES THAT ARE PRESCRIBED BY LAW,
SHALL BE LIMITED TO THE BARE MINIMUM ALLOWED FOR BY THE SAME LAW AND
SHALL NOT EXTEND IN DURATION BEYOND 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 THE LICENSOR WHICH, BY LAW
OR REGULATION APPLICABLE TO THIS EULA, CANNOT BE EXCLUDED OR LIMITED.
FOR WARRANTY ASSISTANCE, CONTACT THE LICENSOR OR THE AUTHORISED
RESELLER FROM WHOM YOU OBTAINED THE LICENSED SOFTWARE.
(f) The Licensed Software may be used or utilised by technology providers, software
providers or other third parties (each “the Service Provider”) to provide you with
certain services, such as managed backup (“Managed Services”). We are not a party
to the agreement or understanding that you have with the Service Provider in
relation to the provision of Managed Services. The Service Provider shall be solely and
fully responsible for providing you with the Managed Services and complying with
the terms and conditions relating thereto, including any negligence, misconduct or
breach. You shall keep us free and fully indemnified from and against any claim that
you may have in relation to the Managed Services or to any breach of the Service
Provider’s obligations towards you or for anything done or omitted to be done by the
Service Provider in providing the Managed Services.
6. Limitations on Liability.
(a) The Licensor shall not be liable whether in contract, (including for negligence or
breach of statutory duty, howsoever arising), misrepresentation (whether innocent or
negligent), restitution or otherwise, for:
(a) any loss (whether direct or indirect) of profits, savings, business, business
opportunities, revenue, turnover, reputation or goodwill;
(b) any loss or corruption (whether direct or indirect) of data or information;
(c) any loss (whether direct or indirect) of anticipated savings or wasted expenditure
(including management time); or
(d) any indirect or consequential loss or liability.
(b) Unless excluded, the Licensor’s maximum aggregate liability for all loss, damage
and expense arising under this Agreement shall not exceed €10.
(c) The Licensor does not exclude or limits liability for:
(a) personal injury or death;
(b) fraud or fraudulent misrepresentation;
(c) any other liability to the extent that the same cannot be excluded or limited by
law.
7. Indemnification. You agree to and do hereby indemnify, defend and hold harmless
the Licensor and its parent, subsidiary, or affiliate organisations, officers, agents,
suppliers, distributors and authorised re-sellers from any and all claims, losses,
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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.
8. Termination of Your Rights. Your rights to use the Licensed Software and
Documentation as specified in clause 2 above shall terminate immediately and
without notice to you if you fail to comply with any of the provisions of this EULA
and/or any other agreement made in connection with this EULA, including a SPLA.
Upon termination for any reason all rights granted to you under this License shall
cease, you shall immediately discontinue the use of and destroy, delete or remove,
the Licensed Software and Documentation, including,
without limitation, any master copies, archival copies and all copies or portions
thereof, that are in your possession or were installed on computer peripherals by you.
Within ten (10) days of such termination you shall certify in writing to Licensor that all
such copies have been destroyed. You hereby also consent to the Licensor and/or its
agents, or employees, inspecting your computer peripherals under your supervision,
to ensure that the Licensed Software and Documentation has been so deleted
and/or destroyed.
9. Compliance with Applicable Law. Each party agrees to comply with all applicable
laws, rules and regulations in connection with its activities under this EULA.
10. Export Restrictions. You agree to comply with all applicable export control laws,
including 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 and take full and sole responsibility that
i) you are not located in or under the control of or a national or resident of any
country or on any list which prohibit the exportation of the Licensed Software
ii) to any person or entity who you know or have reason to know will utilize the
Licensed Software or portion therefore in the design, development, production or
use of nuclear, chemical or biological materials, facilities or weapons or
iii) to any person or entity who has been prohibited from participating in U.S. by any
federal agency of the U.S. government or EU export restrictions
11. Intellectual Property Rights. The Licensed Software and related documentation
are copyrighted works of authorship and are also protected under applicable
database laws. The Licensor retains ownership of the Licensed Software, all
subsequent copies of the Licensed Software and all intellectual property rights
subsisting therein, regardless of the form in which the copies may exist. This EULA is
not a sale of the original Licensed Software or any copies thereof.
12. Maintenance and Support. If the Licensed Software includes and grants you the
right for maintenance and support as defined in clause 2, these services will
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commence upon the date your order is processed and the license file is generated.
You will receive support for your Licensed Software and any updates, enhancements
or improvements that are included or defined in the Maintenance Policies. Licensed
Software updates cannot be applied to the Licensed Software with an expired
Software Maintenance Agreement. If the Licensed Software is an upgrade from an
earlier release or previously released version, you are hereby authorised 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. Updates and upgrades may be
automatically downloaded and installed from time to time. These updates may
consist of bug fixes, new features, or new versions. You expressly acknowledge and
agree that updates or upgrades may not necessarily include all features of the
previous version. You agree to receive such updates as part of the use of the
Licensed Software. The terms of this EULA will govern such updates or upgrades,
unless such update or upgrade is accompanied by a separate license in which case
the terms of that license shall prevail.
13. Privacy. You acknowledge that the Licensor collects and process technical
information for business purposes and improving the Licensed Software, as part of
any product maintenance and support services provided to you, and any other
technical information you provide to Licensor, provided that such information does
not identify You, as a specific individual.
(a ) In the event that you provide personal information to Licensor as part of your
purchase and use of the Software, or for obtaining Maintenance, or we other process
personal data in our capacity as data processors (in terms of applicable data
protection legislation), your personal information will be used, stored and processed
in accordance with Hornetsecurity Privacy Policy, which can be found at
http://www.hornetsecurity.com/service-privacy-statement. You also have the ability
to update your preferences by visiting Hornetsecurity Customer Portal
(b) The Licensed Software has the capability to collect and process technical
information such as configuration, performance, usage, consumption data which
may include the number of times you use the “restore” functionality, the size of the
backup, hardware identification, operating system, application software, peripheral
hardware, Internet Protocol Address, The Licensor shall under no circumstances ever
collect or examine the contents of any files you are backing up or restoring, unless
agreed to specifically between the two parties or required by specific circumstances,
in which case you will be informed in advance.
(c) The Licensed Software also provides the ability to generate error report to the
licensor technical support team. During this error report generation process, which is
done through manual user intervention, application debug data files, configuration
files, log files, system information and personal information (Name, Email, Phone
Number) will be generated and submitted for automatic support case generation.
14. Compliance. During the period this EULA remains in effect and for three (3) years
following the termination of your rights pursuant to clause 8, Licensor has the right
to verify your compliance with this EULA on your premises during your normal
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business hours and in a manner that minimises disruption to your business. The
Licensor may use an independent auditor for this purpose with your prior approval
which you shall not unreasonably withhold.
15. Feature and Capacity Limitations in Software – For certain Licensed Software,
your use of the Licensed Software may be limited by the features and capacity
purchased. In the event that you exceed the purchased capacity, the Licensed
Software may not support certain features or process additional workloads beyond
the maximum capacity until you purchase additional capacity or upgrade to another
suitable version.
16. Community Forums or Blogs – Any information that you post on the Community
Forums or Blogs is deemed non-confidential to you. Hornetsecurity has no
obligation to manage or protect any information (confidential or personal) that you
disclose on the Hornetsecurity Community Forums or Hornetsecurity Blogs
17. Queries. If you have any queries regarding this EULA, email
info@hornetsecurity.com with the word ‘EULA’ as the subject line.
18. Governing Language. Any translation of this License from the English language
is made solely for local requirements and in the event of a dispute between the
English and any non-English versions, the English version of this License shall
govern.
19. General.
(a) Unless you have entered into a separate, written and signed agreement with the
Licensor for the supply of Licensed Software, this EULA is the complete and exclusive
statement of the agreement between you and the 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 or to 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 the
Licensor unless confirmed by a written instrument signed by you and by a duly
authorised officer of the Licensor. No waiver by you or the Licensor of any provision of
this EULA or of any default hereunder shall affect your or the 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) 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.
(c) This EULA shall be governed by and construed exclusively in accordance with the
laws of Malta 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 of Malta, 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.
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(d) We may transfer our rights and obligations under this License to another
organisation. We will inform you of such assignment. You may only assign your
rights and obligations to another person if we agree in writing prior to the
assignment taking place. A change of control shall constitute an assignment.
(e) Licensor will not be liable for any delay or failure to perform obligations under this
Agreement due to any cause beyond its reasonable control, including acts of God,
industrial disturbances, labor disputes, earthquakes, storms or other elements of
nature; systematic electrical, telecommunications or other utility failures; riots; acts of
terrorism; war; embargoes or acts or orders of government;
(f) If we fail to insist that you perform any of your obligations under this License, or if
we do not enforce our rights against you, or if we delay in doing so, that will not
mean that we have waived our rights against you and will not mean that you do not
have to comply with those obligations. If we do waive a default by you, we will only
do so in writing, and that will not mean that we will automatically waive any later
default by you.
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