» version 3.0 - posted on 2007-08-22
EULA - End User License Agreement
STORAGECRAFT TECHNOLOGY CORPORATION™
END-USER LICENSE AGREEMENT FOR ShadowProtect Server Edition 5.0™ AND SHADOWPROTECT DESKTOP EDITION 3.0™
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE ACCEPTING THE LICENSE OR USING THE SOFTWARE. STORAGECRAFT TECHNOLOGY CORPORATION
(“LICENSOR”), IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERENCED BELOW AS (“LICENSEE”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE. THIS LICENSE IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN LICENSEE AND LICENSOR. BY OPENING THIS PACKAGE, BREAKING THE SEAL, CLICKING THE “I AGREE BUTTON” OR OTHERWISE INDICATING ASSENT BY INSTALLING, LOADING, USING OR RETAINING THE SOFTWARE, YOU ACCEPT THIS LICENSE AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, DO NOT OPEN THE PACKAGE OR BREAK THE SEAL OR OTHERWISE INDICATE REFUSAL BY CLICKING THE “I DO NOT AGREE” BUTTON, MAKE NO USE OF THE SOFTWARE, AND CONTACT LICENSOR’S CUSTOMER SERVICE FOR INFORMATION ON HOW TO OBTAIN A REFUND OF THE LICENSE FEE PAID AND FOR INSTRUCTIONS ON RETURNING THE SOFTWARE AND DOCUMENTATION AT ANY TIME DURING THE THIRTY (30) DAY PERIOD FOLLOWING THE DATE OF YOUR LICENSE FEE PAYMENT. IF LICENSEE INSTALLS OR OTHERWISE USES THE SOFTWARE UNDER ANY TRIAL, EVALUATION OR PURCHASE TRANSACTION, LICENSEE’S CONDUCT CONSTITUTES ACCEPTANCE OF THIS LICENSE AND LICENSEE WILL BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. LICENSEE MAY ACCESS LICENSOR’S WEB SITE AT WWW.
STORAGECRAFT.COM/LEGAL/ TO DOWNLOAD AND PRINT A COPY OF THIS LICENSE FOR LICENSEE’S FILES.
This License is made and entered into by and between StorageCraft Technology Corporation of 180 West Election Road, Draper, UT 84020 USA (“Licensor”) and Licensee, the party that has paid the license fee and accepted this License. The Licensor and Licensee are hereinafter, at times, jointly referred to as “the Parties.” The Effective Date of this License is the date on which Licensee has both paid the applicable license fee and accepted this License.
Section 1 Definitions
1.1. “Archival Purposes” means the creation and confi dential storage by Licensee of a single copy of the Software for use by Licensee only in the event that the original licensed copy fails to function properly. Archival use does not include simultaneous use of the original licensed copy and the archival copy.
1.2. “Desktop Operating System” means any broadly released Microsoft operating system intended for desktop computers including but not limited to: Windows 2000 Professional, Windows XP Home Edition and Windows XP Professional
1.3. “Desktop Virtual Machine” means any environment created by an emulator, where software is used to emulate a machines hardware and Desktop Operating System for the end user. VMware® and Virtual PC are examples of software that provide virtual machines. An example of a Desktop Virtual Machine is VMware running Windows XP operating system.
1.4. “Documentation” means all on-line help fi les or written instruction manuals regarding the Use of the Software.
1.5. “Original Copy” means the single copy of the Software provided to Licensee in conjunction with this License.
1.6. “Physical System” means an actual hardware system supported by an installed operating system, and the hardware is not emulated as in a virtual machine.
1.7. “Server Operating System” means any broadly released Microsoft operating system intended for server computers including but not limited to: Windows 2000 and Windows Server 2003.
1.8. “Server Virtual Machine” means any environment created by an emulator, where software is used to emulate a machines hardware and Server Operating System for the end user. VMware and Virtual PC are examples of software that provide virtual machines. An example of a Server Virtual Machine is VMware running Windows Server 2003 operating
1.9. “Software” means the copyrighted products licensed under this License to Licensee consisting of ShadowProtect Desktop Edition 3.0 or ShadowProtect Server Edition 5.0 depending on the specifi c product that is licensed.
1.10. “Volume License Certifi cate” means a license certifi cate issued by Licensor authorizing the Licensee to install and use multiple copies of the Software in such numbers as authorized by the certificate.
Section 2 Proprietary Rights
This is a license and not a sale. The Software and Documentation are proprietary products of Licensor and are protected under United States copyright laws and international treaty provisions and nothing in this License constitutes a waiver of Licensor’s rights under U.S. or international copyright law or any other law. Ownership of the Software and Documentation and all copies, modifi cations, translations, and merged portions thereof shall at all times remain with Licensor, including all copyrights, patent rights, trade secret rights, trademarks and other intellectual property rights therein. Licensee’s rights to use the Software are specifi ed in this License and Licensor retains all rights not expressly granted to Licensee in this License. All copies of the Software and Documentation authorized hereunder are to be used solely for backup or archival purposes and must contain the same proprietary notices that appear on and in the Software and Documentation. This License governs any upgrades, releases, revisions, or enhancements to the Software that the Licensor may furnish to the Licensee.
Section 3 Grant of License
Licensee is granted a non-exclusive, non-transferable license to use the Software and its Documentation subject to the specific license transaction and its rights and limitations applicable to each version of the license as described below and specifi cally including the License restrictions provided in Section 4 of this License. This License authorizes the Licensee to use the Software on a single computer. If the License pertains to ShadowProtect Server Edition and Licensee has not acquired a Volume License Certifi cate, the Software may only be used on a single computer running a Server Operating System. If Licensee has acquired a Volume License Certifi cate for ShadowPrtotect Server Edition, then Licensee is authorized to install and operate the Software on as many computers running a Server Operating System as the Volume License Certifi cate authorizes. If the License pertains to ShadowProtect Desktop Edition and the Licensee has not acquired a Volume License Certifi cate, the Software may only be used on a single computer running a Desktop Operating System. If Licensee has acquired a Volume License Certifi cate for ShadowPrtotect Desktop Edition, then Licensee is authorized to install and operate the Software on as many computers running a Desktop Operating System as the Volume License Certifi cate authorizes.
(i) Full Desktop License – a fully paid worldwide, perpetual and revocable license to use the Software on a Desktop Operating System. The Full version of the Software may be acquired by the Licensee either by purchase of a packaged boxed version or by download from Licensor’s webstore or one of Licensor’s reseller partners.
(ii) Full Server License – a fully paid worldwide, perpetual and revocable license to use the Software on a Server Operating System. The Full version of the Software may be acquired by the Licensee either by purchase of a packaged boxed version or by download from Licensor’s webstore or one of Licensor’s reseller partners.
(iii) Evaluation License – a license that entitles the Licensee to use all features of the Full license and includes the StorageCraft Recovery Environment. This license is provided to the Licensee for evaluation purposes for the specifi c evaluation period allowed by the Software. The Software will provide Licensee with advance notice of the expiration of the Software before that event occurs. This License may not be copied, distributed or resold. The Evaluation version of the Software may be acquired by the Licensee
based on a pre-qualifi ed transaction of a packaged boxed version or by download from Licensor’s web site or one of Licensor’s reseller partners.
(iv) Trial License – Equivalent of the evaluation license without the StorageCraft Recovery Environment. The Trial version of the Software may be acquired by the Licensee by download from Licensor’s web site or a download provider authorized by Licensor.
(v) Not for Resale (“NFR”) License – This is a full license to use the Software provided for promotional purposes at no or reduced cost to Licensee. This license may not be copied, distributed or resold. The electronic delivery, packaging or media on which the NFR Software is provided is marked “NFR” or “Not For Resale.” The NFR version of the Software may be acquired by the Licensee either as a packaged boxed version provided by Licensor or by download from Licensor’s webstore or one of Licensor’s reseller partners.
(vi) Full Desktop Virtual Machine License – This is a full license to use the Software on a virtual machine running a Desktop Operating System. This license does not authorize the Licensee to install and use the Software on a Physical (“not a Virtual Machine”) system. With the exception that the use of the Software granted under this License is limited to a Desktop Virtual Machine, all other rights granted and limitations imposed on the Full Desktop License apply.
(vii) Full Server Virtual Machine License – This is a full license to use the Software on a virtual machine running a Server Operating System. This license does not authorize the Licensee to install and use the Software on a Physical (“not a Virtual Machine”) system. With the exception that the use of the Software granted under this License is limited to a Server Virtual Machine, all other rights granted and limitations imposed on the Full Server License apply.
3.2. For the term of this License, Licensor grants to Licensee the right to: (a) to use the Software strictly in accordance with the terms of this License, (b) to copy the Software for backup or archival purposes provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced, and provided further that the archival copy is not used unless the original copy of the Software becomes inoperable or fails to function properly, (c) Licensee may transfer the rights granted to Licensee
under this License on a permanent basis to another person or entity, provided that Licensee retains no copies of the Software and the transferee agrees, in writing, prior to such transfer, to the terms of this License. Any other attempt by Licensee to transfer the rights or obligations under this License will be null and void and will constitute a material breach of this License.
3.3. LICENSEE UNDERSTANDS AND AGREES THAT WITH RESPECT TO CERTAIN LICENSES COVERED BY THIS LICENSE ALL FUNCTIONALITY OF THE SOFTWARE WILL TIME OUT AND CEASE TO OPERATE AS GOVERNED BY THE LICENSE AND SOFTWARE. IN THE EVENT THAT THE SOFTWARE TIMES OUT AND CEASES TO OPERATE, LICENSOR SHALL HAVE NO RESPONSIBILITY TO PROVIDE SERVICE OR SUPPORT FOR THE SOFTWARE.
Section 4 License Restrictions
Licensee agrees that it will not, directly or through any parent, subsidiary, affi liate, agent or third party do any of the following with respect to the Software or Documentation licensed:
(i) use the Software or Documentation in violation of the terms of this License;
(ii) copy the Software or Documentation except as specifi cally authorized under this License;
(iii) permit concurrent use of any copy of the Software except as authorized by a Volume License Certificate;
(iv) sell, lease, license, sublicense or otherwise deal with any portion of the Software or Documentation;
(v) provide, lend, disclose, divulge or make available to, or permit use of the Software or Documentation by persons other than the Licensee without Licensor’s prior written consent;
(vi) rent, lease, grant a security interest in, or otherwise transfer rights to, or possession of, the Software or any copy thereof;
(vii) use the Software in any service bureau or time sharing arrangement,
(viii) remove or alter any proprietary notices, labels or legends on any copy of the Software or Documentation;
(ix) ship or transmit (directly or indirectly) any copies of the Software or Documentation to any country or destination prohibited by the United States Government;
(x) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from, employ or manipulate the Software;
(xi) use a Desktop Virtual Machine license or Server Virtual Machine license on a physical system.
Section 5 License Fee
5.1. License Fee. The following licenses require payment of the license fee established by Licensor or an authorized reseller of the Licensor: Full Desktop License, Full Server License, Full Desktop Virtual Machine License and Full Server Virtual Machine License. The following licenses do not require a payment of a license fee: Evaluation License, Trial License and Not For Resale (“NFR”) License.
5.2. Upgrade License Fee. If an upgrade is offered by Licensor, Licensee shall be entitled to acquire such upgrade under the rights granted and limitations imposed by Licensor under such program. Licensor does not make any commitment to offer an upgrade to the Software.
5.3. Maintenance and Support Fee. This License does not provide Licensee with any rights to maintenance or support of the Licensed Software except for the Software support defi ned in Section 6. Maintenance and support in addition to the support granted in Section 6, is available by separate agreement with Licensor.
Section 6 Support Licensee is entitled to the benefi ts of Licensor’s support program in consideration for its payment of the license fee. Licensor’s support program includes the following options, all of which can be
accessed and used by Licensee:
(ii) Support Form Request;
(iii) Forum – Licensor moderated user forum;
(iv) Knowledge Base – question and answer resource including frequently asked questions;
Section 7 Termination
This License is effective until terminated by Licensor pursuant to this Section. Licensee may terminate this License for convenience at any time. Licensor may terminate this License effective immediately by providing a notice to Licensee for breach of any provision in Section 3 and 4 or if Licensee breaches any other material provision of this License and does not cure the breach within twenty (20) days after receiving notice thereof from Licensor. Upon termination of this License, Licensee must cease use of and destroy all copies of the Software and Documentation.
Section 8 Limited Warranty
8.1. Limited Warranty. Licensor warrants that, for sixty (60) days after the date Licensee fi rst acquired the Software from Licensor or its reseller, distributor or authorized representative, that the media on which the Software is provided will be free from defects in materials and workmanship under normal use. This warranty gives Licensee specifi c rights and Licensee may also have other rights that vary from state to state.
8.2. Licensee Remedies. Under the Limited Warranty provided in Section 8.1, the entire liability of Licensor and its dealers, distributors or authorized representatives and Licensee’s exclusive remedy for any breach of the foregoing Limited Warranty shall be, at Licensor’s option, either (i) return of the license fee paid for the license or (ii) replacement of the defective media on which the Software is contained, provided Licensee notifi es Licensor of the nonconformance within the sixty (60) day warranty period. Licensee must return
the defective media to Licensor or its dealer, distributor or authorized representative at Licensee’s expense, together with a copy of Licensee’s proof of payment of the license fee within the sixty (60) day warranty period. This Limited Warranty is void if the defect has resulted from alteration, abuse, damage or misapplication. Any replacement media will be warranted for the remainder of the original warranty period, or 30 days, whichever is longer.
Section 9 Disclaimer of Warranties
LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT IT’S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR EXPRESS WARRANTIES
STATED IN THIS LICENSE, THE SOFTWARE IS PROVIDED “AS IS” AND ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFECT IS WITH LICENSEE. TO THE EXTENT ALLOWED BY LAW, LICENSOR AND ITS DEALERS, DISTRIBUTORS AND AUTHORIZED REPRESENTATIVES EXPRESSLY DISCLAIM ALL EXPRESS WARRANTIES NOT STATED HEREIN AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT OR ACCURACY. IF ANY IMPLIED WARRANTY IS NOT DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO 30 DAYS FROM THE DATE LICENSEE ACQUIRED THE SOFTWARE FROM LICENSOR OR ITS DEALERS, DISTRIBUTORS OR AUTHORIZED REPRESENTATIVES AND IS SUBJECT TO THE EXCLUSIVE REMEDY PROVISION SET FORTH IN SECTION 8.2. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING 30 DAY TIME LIMITATION ON IMPLIED WARRANTIES MAY NOT APPLY TO LICENSEE.
The Limited Warranty herein gives Licensee specifi c legal rights and Licensee may also have other legal rights which vary from state to state. Warranty inquiries may be sent to Licensor at: firstname.lastname@example.org or to Legal Department, 180 West Election Road, Suite 230, Draper, Utah 84020, U.S.A.
Section 10 Limitation of Liability
THE LIABILITY OF LICENSOR AND THAT OF ITS DEALERS, DISTRIBUTORS AND AUTHORIZED REPRESENTATIVES TO LICENSEE FOR ANY LOSSES SHALL BE LIMITED TO DIRECT DAMAGES AND
SHALL NOT EXCEED THE AMOUNT LICENSEE ORIGINALLY PAID FOR THE SOFTWARE AND IN NO EVENT SHALL LICENSOR OR ITS DEALERS, DISTRIBUTORS OR AUTHORIZED REPRESENTATIVES BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.