PHD Virtual Backup for VMware v6.0 6.0

EULA - End User License Agreement

1. LICENSE GrantS AND RESTRICTIONS.
1.1 Subject to the terms of this Agreement, Licensor grants to Licensee a non-transferable, non-exclusive, non-sublicenseable limited license, under all applicable Intellectual Property Rights, to install, copy, use and display the Software applicable to Licensee on a computer or computer network, owned or controlled solely by Licensee, and to access and permit its employees and consultants to access such Software in accordance with the Documentation, for internal business purposes only. All rights not expressly granted to Licensee hereunder are reserved by Licensor. The Software is “installed” on a Computer when it is copied to the hard disk of a Computer. The Software is in “use” when it is loaded into the Computer's temporary memory (i.e., RAM). If the Software is installed on a network fileserver, each user agrees to be bound by the terms of this Agreement. Licensee may use the licensed Software for the benefit of its Affiliates, provided that they assume and abide by the obligations and restrictions established hereunder. Except as related to the internal business of Licensee and Licensee's Affiliates or as otherwise provided in Section 13 of this Agreement, Licensee may not use the Software to process accounts or records, or to generate output data, for the direct benefit of, or for purposes of rendering services to, any other business entities or organizations.
1.2 If the license granted to Licensee hereunder is a “perpetual” license, such license to operate the Software will remain in full force and effect until the occurrence of any termination event under Section 12.
1.3 Except as expressly set forth in this Agreement, Licensee may not:
(a) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Software, for any purpose, (ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Software, or (iii) make any modification, enhancement, or Derivative Work of the Software, or incorporate the Software, or any portion thereof, into or with any other software; or
(b) copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Software.
1.4 Notwithstanding the foregoing, Licensee may make copies of the Documentation, containing all legends, trademarks, trade names, copyright notices and other identifications associated with the original, to the extent reasonably necessary to utilize the licensed Software as set forth in this Agreement. Licensee may install the licensed Software solely as set forth below; automated copy protection may prevent any further installation without intervention by Licensor:
(a) If Licensee has purchased a perpetual “server” license, then the Licensee may operate the Software only on a single server Computer unless otherwise agreed in writing by Licensor. Except as otherwise permitted in this Agreement, Licensee may not use this server licensed Software to provide third parties services.
(b) If Licensee has purchased a term “Managed Service Provider” license, then the Licensee may operate the Software only to the maximum number of server or “virtual machines” unless agreed in writing by Licensor.
It is expressly prohibited to use the Software where the result of such an installation will cause the maximum authorized for use to be exceeded. Use of the Software in such manner constitutes a condition of termination pursuant to Section 12.
1.5 Except as specifically set forth in this Agreement, Licensee acknowledges that this Agreement does not grant Licensee any use of or rights to the Software, including, but not limited to, any rights to the Source Code for the Software.
1.6 Licensee acknowledges that Licensor has, and will from time to time create, other computer software programs that may be based upon or related to the Software and that those other programs are not licensed to Licensee under this Agreement.
1.7 Except as specifically set forth herein, Licensee acknowledges that Licensor has no responsibility for providing Licensee with any services, support, product upgrades or other enhancements for or in connection with, and that Licensor is under no obligation to create any product upgrades or enhancements to, the Software.
1.8 Licensee's use of the licensed Software is subject to the license and automated protection methods used by Licensor. Licensee agrees not to take or cooperate in any effort to defeat or avoid these protection methods.
2. EVALUATION LICENSE.
If Licensee receives the Software for evaluation or without payment of a fee, then this Section applies. Licensee may use the Software only for the purpose of evaluating the functions and performance of the Software. The Software may not be used for the processing of any business data or for other commercial use. Licensee acknowledges that evaluation copies of the Software are automatically disabled upon expiration of the designated trial period (at the end of which, Licensee's license also expires).
3. OWNERSHIP.
3.1 Licensee acknowledges that Licensor is the owner of all Intellectual Property Rights associated with the Software and except as set forth in this Agreement, Licensor does not grant any rights to or ownership of the Software to Licensee. Licensee further acknowledges that Licensor retains all right, title and interest in the Software and Documentation and in all improvements, enhancements, modifications and Derivative Works of the Software including all rights to patent, copyright, trade secret and trademark, regardless of the identity of the creating party except for Derivative Works which are built solely from the API's (as defined below) which shall be owned by Licensee. Notwithstanding the foregoing, in the event of the creation of a Derivative Work by Licensee based upon the API supplied by Licensor, Licensee agrees to deliver to Licensor a copy of the source code relating to such Derivative Work. Licensor shall thereafter be permitted to utilize such source code in order to create or enhance its existing products for its customers.
3.2 Licensee agrees that all trademark and intellectual property notices for the Software will be preserved unmodified. Licensee further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Software and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Software except to the extent permitted under this Agreement.
3.3 Licensee shall instruct its employees and agents that making unauthorized copies of the Software or Documentation or any portion thereof, or permitting use of the Software and/or Documentation other than in accordance with the terms of this Agreement, constitutes a violation of copyright law and of this Agreement. If any such employee or agent subsequently makes an unauthorized copy of the Software and/or Documentation or any portion thereof, Licensee shall pay to Licensor the full price for each unauthorized copy, based on Licensor's then current standard rates.
3.4 Licensee agrees not to challenge, directly or indirectly, any right or interest of Licensor in the Software and any improvements, enhancements, modifications and Derivative Works of the Software or the validity or enforceability of Licensor's rights under applicable law. Except as expressly permitted in this Agreement, Licensee agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Software or any improvements, enhancements, modifications or Derivative Works of the Software or to take any other action which may adversely affect Licensor's rights or interest in the Software and any improvements, enhancements, modifications and Derivative Works of the Software in any jurisdiction.
3.5 Licensee agrees to notify Licensor immediately and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Software by any person or entity. Licensee agrees to cooperate fully with Licensor in any litigation relating to or arising from such unauthorized possession or use.
3.6 Licensee acknowledges that, in the event of a breach of its obligations under this Section 4, Licensor may (a) immediately terminate this Agreement, without any Licensor liability to Licensee; (b) bring an appropriate legal action to enjoin any such breach of this Agreement without the need to obtain a bond or other security; and (c) recover from Licensee reasonable attorneys' fees and costs in addition to other appropriate relief.
4. MAINTENANCE plan.
Licensor may, from time to time, offer a service and support plan (a “Maintenance Plan”) in connection with the Software on such terms and conditions as Licensor may determine in Licensor's sole discretion and provide Software updates and telephone support. If Licensee discontinues a Maintenance Plan, Licensor may require Licensee to pay a reinstatement fee in order to purchase further Maintenance Plans. If the purchase documentation specifies certain services as included in the Maintenance Plan, then the Maintenance Plan will include only those services as Licensor, at its sole discretion, defines and modifies those specified services from time to time. If the purchase documentation does not specify the services included in the Maintenance Plan, the Maintenance Plan includes only those services that Licensor identifies as being contained within the Maintenance Plan. Licensor agrees to provide the services in Licensee's Maintenance Plan in a similar manner and degree in which Licensor provides those services to Software licensees who purchase the same Maintenance Plan. Licensee agrees to follow service policies or procedures. Licensor may, at its sole discretion, discontinue any services to Licensee for any version and edition of the Software at any time.
5. WARRANTIES AND DISCLAIMERS.
Licensor does not warrant that the Software will be error-free in all circumstances. Licensor warrants to Licensee that, on the date of Licensee's initial use of the Software and for a period ending thirty (30) days following that date (the “warranty period”), the licensed Software will perform substantially in accordance with the Documentation. In the event of any defect or error covered by such warranty, Licensee will provide Licensor with sufficient detail to allow Licensor to reproduce the defect or error. If notified in writing by Licensee during the warranty period, Licensor will, at its sole option, either (a) correct such error or defect in the Software, at no cost to Licensee and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass, or (b) accept return of the Software and Documentation and refund any license fees previously paid by Licensee in connection with such Software. Licensor is not responsible for any defect or error not reported during the warranty period or any defect or error caused by a program Licensee has modified, misused or damaged. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, OR SATISFACTORY QUALITY REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE.
6. limitation of liability.
Notwithstanding any provision in this Agreement to the contrary, Licensor will not be responsible for or will not bear any liability for any damages arising from any use of the Software, or any stoppages, slowdowns, performance problems or other problems that are the result of the Internet or the Licensee's telecommunications or Internet access providers. IN NO EVENT LICENSOR PARTY BE LIABLE OR OBLIGATED UNDER THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO LICENSOR FOR THE SOFTWARE IN QUESTION, OR (B) FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND. THIS SECTION 7 DOES NOT LIMIT LIABILITY UNDER SECTION 8. licensee MAY NOT BRING ANY CLAIM OR ACTION, REGARDLESS OF THE FORM THEREOF, ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, MORE THAN ONE (1) YEAR AFTER THE DATE OF THE EVENT FROM WHICH THE CLAIM OR ACTION ARISES OR ACCRUES.
7. intellectual property rights INDEMNIFICATION.
7.1 Licensor agrees to indemnify, defend and hold Licensee harmless from any third party claim that arises out of Licensee's use of the licensed Software and that alleges that such Software or Documentation infringes a third party's proprietary rights in the United States, and Licensor agrees to pay all costs (including, but not limited to, court costs and reasonable attorneys' fees), expenses and damages incurred by Licensee in connection with any such action, provided that (a) Licensee promptly notifies Licensor in writing no later than thirty (30) days after Licensee's notice of any potential claim, (b) Licensee permits Licensor to defend, compromise or settle the claim, and (c) Licensee gives Licensor all available information, reasonable assistance, and authority to enable Licensor to do so.
7.2 If the licensed Software or any portion of the licensed Software becomes, or in Licensor's opinion is likely to become subject to any claim of infringement, Licensor will either (a) procure for Licensee the right to continue exercising its rights under this Agreement with respect to the Software; or (b) replace or modify the Software to make it non-infringing, or if, neither (a) nor (b) are, in Licensor's sole discretion, commercially feasible, terminate the license to the Software granted herein and refund to Licensee a pro-rated portion of the applicable license fee paid for the Software based on a linear depreciation monthly over a three (3) year useful life, in which case Licensee will return to Licensor all copies of the Software and cease all use of it.
7.3 Notwithstanding the foregoing, Licensor will have no liability for any claim of infringement based upon, and Licensee will indemnify and hold Licensor harmless from any costs (including, but not limited to, court costs and reasonable attorneys' fees), expenses and damages against any infringement claim for Licensee's (a) use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Software that Licensor provided or made available to Licensee; (b) use of Software which has been modified by a party other than Licensor; (c) use of the Software (i) other than in accordance with the terms and conditions set forth in this Agreement; (ii) other than under normal use as set forth in the Documentation, or (iii) in combination with other software or equipment not provided by Licensor if such infringement would not have occurred without such use or combination; or (d) continuing the allegedly infringing activity after notice.
8. TRADEmarks.
Licensee acknowledges Licensor's ownership of the trademark(s) in and to the Software names, and all related trademarks and service marks. Except as set forth in this Agreement, Licensee further acknowledges that it will acquire no interest or goodwill in such trademarks and service marks by virtue of this Agreement or the performance or exercise by Licensee of its rights, duties and obligations under this Agreement. Licensee agrees not to use the name of the Software or Licensor's trademarks or service marks (or any confusingly similar names or symbols), in whole or in part, as part of Licensee's business or trade name.
9. confidentiality.
The terms and conditions of this Agreement and certain information contained in the Software are confidential, trade secret, or proprietary in nature. This includes, but is not limited to, the Software's Source Code, the detailed workings of each major function of the Software, the compilation of the major functions of the Software, the Software's technical design, the Software's look and feel, the Software's internal data formats and database, and the Software's calculation routines (collectively, the “Confidential Information”). Licensee agrees to keep the Confidential Information strictly secret and confidential, except as permitted in this Agreement. Licensee agrees not to use (or permit use of) Confidential Information for any purpose other than in the licensed use of the Software. In any case, Licensee may not use (or permit use of) any Confidential Information for the purpose of competing with Licensor or its Affiliates.
Licensee may disclose the Confidential Information if necessary, in the reasonable and written opinion of Licensee's attorney, to comply with any law applicable to Licensee after giving prompt notice to Licensor and cooperating with Licensor's efforts to avoid the requirement to disclose the Confidential Information. Licensee agrees to safeguard the Software with a degree of care commensurate with reasonable standards of industrial security for protection of this information or with the standards the Licensee uses to protect its own most confidential information, if greater.
10. export.
Licensee agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Software, or any technical information about the Software or Documentation, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained.
11. TERMINATION.
11.1 The license to use and operate the Software will terminate on the occurrence of any of the following:
(A) Licensee fails to pay any fees payable to Licensor by Licensee hereunder; or
(B) Licensee attempts to transfer this Agreement (or any rights or licenses under this Agreement) to any third party, whether by way of assignment, merger, consolidation, amalgamation, or otherwise, without the prior written approval of Licensor; or
(C) Licensee fails to comply with the material terms of this Agreement; or
(D) Licensee is the subject of any proceeding relating to insolvency, bankruptcy, receivership, liquidation, or composition for the benefit of creditors.
11.2 If the license or this Agreement is terminated, Licensee will not be entitled to a refund of any license fee or a credit against or relief from any sum owed by Licensee to Licensor.
11.3 Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for the Licensee's obligations under Sections 4, 7, 8, 9, 10, 11 and 13 and Licensor's obligations under Section 8, which obligations shall survive the termination of this Agreement.