NETBACKUPS END USER LICENSE AGREEMENT
BY DOWNLOADING AND/OR USING ANY SOFTWARE CLOUD SERVICES, OR HOSTED SERVICES (COLLECTIVELY, “PRODUCTS”) OF INTERACTIVE TECHNOLOGY LIMITED OR ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, “COMPANY”), YOU (“YOU” OR “USER”) ACKNOWLEDGE AND AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) AND REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY TO BE BOUND BY THE TERMS HEREIN. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT INSTALL AND/OR OTHERWISE USE ANY OF THE PRODUCTS AND, IF PRESENTED WITH THE OPTION TO “ACCEPT”, CLICK “DECLINE”, IN WHICH CASE YOU WILL NOT AND MAY NOT DOWNLOAD, INSTALL, OR USE THE PRODUCTS.
“Service” shall mean the cloud services or hosted services of Company. Typically, the Service will consist of electronic transmission of data over a platform or medium (such, as without limitation, the Internet) to a location maintained to store such data. Users may then have access to management and retrieval of such stored data. The Service may be provided through any one or more media or technology platforms, including (without limitation) the Internet, mobile telephony or networks, or otherwise.
“Software” shall mean collectively, the Client Application, and any other software provided by Company through which the Service is accessed and any documentation, updates, upgrades, which you are made available to you. Software shall include Trial Versions, if any. Software excludes third party Items.
“Client Application” means the applicable software application which runs on the individual desktop computer or other local operating system of a mobile or other device.
“Trial Version” means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version unless a complete, commercial version of the Software is purchased.
(b) Licensed Not Sold. The Software, and any third party software is licensed, not sold to you by Company for use only under the terms of this EULA. Company and/or Company’s licensors retain ownership of the Software and Service itself and reserve all rights not expressly granted to you including without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights in or associated with the Software. The terms of this EULA will govern any Software and Service updates, upgrades, new versions, provided by Company that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
(c) Export. The export and re-export of the Software is controlled by the United States Export Administration Regulations and such Software may not be exported or re-exported to Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, Software may not be distributed to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. By downloading or using the Software you are certifying that you are not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. COMPANY FORBIDS YOU FROM ACCESSING, USING DISTRIBUTING OR OPERATING THE SOFTWARE OR SERVICE WHERE YOU ARE PROHIBITED FROM DOING SO BY APPLICABLE LAW, RULE OR REGULATION.
2. Limited License.
Subject to the terms of this Agreement, Company grants to you a limited, personal, non-exclusive, non-sublicensable, non-transferable and non-assignable license to download, install, and use the Software on a computer in only the manner prescribed herein on one or more computers, provided that the same are for your use for the sole purposes for which the Service and Software are designed.
You may not, under any circumstances whatsoever, make any copies (or attempt any duplication), whether directly or indirectly, of the Software for any reason. In addition, you may not in any event, directly or indirectly, do any of the following: (a) remove any copyright, trademark, or other proprietary notices affixed to the Software or Service; (b) alter, change, repurpose or modify the Software or Service, other than as is provided for within the re-branding functionality; (c) reverse engineer, disassemble, decompile or attempt to derive source code from the Software or Service; (d) prepare derivative works, improvements or intellectual property based on the Software or Service; (e) use the Software or Service for any unlawful, immoral, unethical or unreasonable purpose or activity; or (f) cause or intend the Software or Service to be used in any way or manner that may violate the intellectual property or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity.
Failure by you to duly comply with applicable laws, rules and regulations regarding copyrights, patents and other intellectual property and personal rights may subject you to both civil and criminal liability, including (without limitation) possible fines and incarceration, and Company will not be responsible for any breaches by you of this Agreement or violations by you of any applicable law, rule or regulation. If, for any reason, you are uncertain about your rights (if any) to copy, distribute or use any material, you should contact an attorney and obtain legal advice regarding the same. At any time during the term of this Agreement or thereafter, Company shall have the right to audit your use of the Software and Service to confirm compliance with this Agreement.
If the software is designed for use with the Service, NetBackups grants you a non-exclusive limited license to use such software with the Service, provided you possesses a valid subscription or license (as applicable) from NetBackups to access the Service.
In its sole and absolute discretion, Company may, from time to time, offer fixes, updates, and upgrades to you, including, but not limited to, new versions of the Software. You may accept or reject such fixes, updates, or upgrades at your sole discretion and at your own exclusive risk. While Company may offer such items, Company is not required and is under no obligation to provide any maintenance or services to you, including (without limitation) any support, updates, enhancements, or other modifications to the Software. Unless explicitly stated otherwise in writing, the terms of this Agreement will govern any updates, or upgrades provided by Company that replaces, modifies or supplements the Software. Company may make any fixes, updates or upgrades available by automatic download, wherefore you are hereby deemed to accept fixes, updates or upgrades upon your automatic download of the same.
5. Additional Representations, Warranties and Covenants
You hereby expressly represent, warrant, covenant and agree that: (a) you have full capacity, right and authority to enter into and perform this Agreement; (b) your use of the Service and Software will not, directly or indirectly, infringe (in whole or in part) any intellectual property rights, including, but not limited to, patent, copyright, trademark, trade secret, mask work or other intellectual property rights, personal or privacy rights of any third party or Company; (c) your use of the Service and Software will in all manners and respects comply with any and all applicable laws, rules and regulations; (d) your use of the Software will not in any manner, directly or indirectly, disparage, defame, discredit or harm Company or its reputation or goodwill; (e) your entry into this Agreement and/or use of the Software or does not breach any of your obligations to any third party, breach any contract or agreement or violate any applicable rule, law or regulation; (f) your entry into this Agreement and use of the Software is for a bona fide purpose and you are not using the Software to distribute any services or software for an improper, illegal, immoral or unethical purpose.
6. Legal Compliance
You agree to comply, at your sole and own expense, with any and all applicable laws, ordinances, regulations and codes, including (without limitation) the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections, needed as a result of or in connection with this Agreement. You will immediately report to us any and all suspected or actual violations of the Agreement by others that you are aware of (or should be aware of, based upon the circumstances).
7. Disclaimer of Legal Compliance
YOU EXPRESSLY UNDERSTAND AND ACKNOWLEDGE THAT THE SOFTWARE AND SERVICE MAY NOT CONFORM TO, OR MEET WITH, ANY OR ALL APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BILEY ACT (AS AMENDED) AND OTHER LAWS, RULES AND REGULATIONS OF THE UNITED STATES OR ANY FOREIGN JURISDICTION. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR SERVICES OR ITS COMPLIANCE (OR LACK THEREOF) WITH THE AFOREMENTIONED LAWS OR ANY OTHER LAWS, RULES OR REGULATIONS.
This Agreement shall remain effective and in full force and effect until terminated (i) by us at any time upon notice thereof to you, or (ii) by you upon fourteen (14) calendar days’ prior written notice to us. Upon any termination or expiration of this Agreement, any and all provisions and obligations, which are of a continuing nature or intent, shall survive, including (without limitation) the sections titled Intellectual Property, Indemnification and Limitation of Liability. Furthermore, upon termination, you must immediately discontinue any and all use of the Software and destroy, delete, or uninstall any and all copies of the Software in your possession, whether on your computer or on any media or otherwise. Following termination or expiration of the Agreement, Company may, in its sole and absolute discretion, choose to at any time erase, destroy, permanently delete any and all of your data, materials, content, information and files stored with, transmitted, or backed up through Company.
9. Intellectual Property
Nothing in this Agreement is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of Company) to You other than as set forth in the Limited License section above. All intellectual property rights shall remain the sole and exclusive property of the Company and you shall gain no interest, right or title therein by entering into this Agreement or using the Software. Further, nothing contained on or through the Software, or in this Agreement, should be construed as granting (whether express, by implication, estoppel or otherwise) any license or right to you to use any intellectual property, trademarks, copyrights or other proprietary information displayed in or through the Software. The absence of a product or service name or logo anywhere in the text of the Software does not constitute a waiver of any trademark or other intellectual property rights concerning that name or logo.
10. Disclaimer of Warranties
THE SOFTWARE IS PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, SERVICES, MATERIALS OR CONTENT IN THE SOFTWARE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED IN THE SOFTWARE (OR ACCESSIBLE THROUGH THE SOFTWARE) WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SOFTWARE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION. YOU AGREE THAT YOU WILL MAINTAIN A PRIMARY ELECTRONIC FILE OF YOUR DATA AND MATERIALS AND WILL NOT USE THE SOFTWARE AS A SUBSTITUTE THEREFORE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS REPRESENTATIVES WILL UNDER ANY CIRCUMSTANCES CREATE A WARRANTY, UNLESS SPECIFICALLY SET FORTH IN AN EXPRESS WRITING SIGNED BY AN OFFICER OF THE COMPANY. SHOULD THE SOFTWARE PROVE DEFECTIVE OR ERRONEOUS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICE, REPAIR, OR CORRECTION AND WE WILL HAVE ABSOLUTELY NO LIABILITY WITH RESPECT THERETO.
11. Limitation of Liability
NOTIWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL COMPANY BE LIABLE (EVEN IF COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OF BUSINESS PROFITS OR REVENUES, LOSS OF USE OR LOSS OF BUSINESS OR PERSONAL INFORMATION) ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE, SERVICE, OR THE RELATIONSHIP BETWEEN YOU AND COMPANY; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SOFTWARE, SERVICE, OR THE RELATIONSHIP BETWEEN YOU AND COMPANY WHICH EXCEEDS TEN UNITED STATES DOLLARS ($10.00). ANY CLAIM BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM OR FOREVER BE BARRED. Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
13. Changes or Specialized Modifications
The Company may, in its sole and absolute discretion, change any term of this Agreement on a prospective basis, and modify, add or discontinue any aspect, content or feature of the Software or Service, at its sole discretion. Your continued use of the Software after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of any such modifications or changes to the Agreement. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. To the extent that an arbitrator or court of applicable jurisdiction determines that applying any changes to these Terms would render this an illusory or unenforceable contract, such changes shall be applicable on a prospective basis only, with respect to events or circumstances occurring after the date of such changes, to the extent necessary to avoid these Terms being deemed illusory or unenforceable.
14. Equitable Relief
Notwithstanding anything to the contrary in the section “General” below, you expressly agree that any use of the Software by you that violates or is inconsistent with the terms of this Agreement (in whole or in part) may: (i) cause Company irreparable damage and injunctive, and (ii) equitable or injunctive relief (including, but not limited to, specific performance) may be necessary to protect our rights or interests. Accordingly, you agree that Company may in any such instance, in its sole and absolute discretion and judgment, request any suitable injunctive or other equitable relief from any court of competent jurisdiction (without posting any bond) and that you will not assert any objection thereof (including, but not limited to, a claim that such relief is inappropriate or that the harm alleged by Company is not irreparable).
15. Sole Remedy
If you are dissatisfied for any reason with the Software or the terms and conditions of this Agreement, your sole and exclusive remedy (whether at law or equity) shall be to discontinue your use of the Software and terminate this Agreement as described herein.
(a) This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, without regard to the conflicts of law provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to the Agreement.
(b) If You have any dispute with us relating to this Agreement, You will not have the right to pursue a claim in court, or have a jury decide the claim and You will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By downloading or using the Product, you agree to binding arbitration. Company will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with Company.
(i) the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between You and Company (the “Arbitrator”);
(ii) the Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of this Agreement and/or these arbitration provisions herein, including but not limited to any claim that all or any part of this Agreement being void or voidable;
(iii) the Arbitration shall be held either: (X) at a location determined by AAA pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (Y) at such other location as may be mutually agreed upon by You and Company;
(iv) the Arbitrator (WW) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (XX) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (YY) shall honor claims of privilege recognized at law; and (ZZ) shall have authority to award any form of legal or equitable relief;
(v) the Arbitration can resolve only Your and/or Company’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(vi) the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(vii) with the exception of subpart (v) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (v) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Company shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
(viii) Company may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Company has given notice of such modifications and only on a prospective basis for claims arising from this Agreement occurring after the effective date of such notification.
(ix) Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Company in your local small claims court within the United States, if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
(d) If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect at all times.
(e) Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war or Acts of God). If any such circumstances occur, Company shall use commercially reasonable efforts to attempt to provide reasonable notice to you of the same. The time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
(f) Unless otherwise stated herein, any notices hereunder to Company shall be in writing and be delivered by hand or mail (as specified below) to the persons and at the addresses as set forth below and shall be deemed given upon (i) delivery if by hand, (ii) five (5) business days after mailing if by certified mail, return receipt requested, or (iii) confirmation of delivery in the case of overnight or express mail. Notices to You hereunder may be provided by electronic mail to the electronic mail address provided by you to Company (and such notice shall be deemed given immediately upon transmission thereof by Company). Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.
(g) Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment by you in violation of this paragraph shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. Company may freely assign or transfer (in whole or in part) this Agreement with or without notice thereof to you.
(h) This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which will be deemed a single agreement; provided, that your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Software as discussed herein shall in and of itself constitute such assent and acceptance. This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement.
(i) The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel. Uses of the words “and”, “or” and “and/or” herein, when used with respect to Software, shall be deemed to include “and” as well as “or”.
(j) Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party. The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
(k) Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision. A waiver by Company of any right, remedy or provision hereof shall only be effective if it is in an express writing that is signed by a duly authorized officer of Company.
(l) This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. Except as provided in the paragraph titled “Changes or Specialized Modifications” above, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by a duly authorized officer of Company.
This Agreement was last revised on June 06, 2014.
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