Last Revised: November 1, 2019
*** IMPORTANT – PLEASE READ CAREFULLY BEFORE YOU DOWNLOAD OR USE THE SOFTWARE ***
UNITRENDS, INC. (“UNITRENDS” or “LICENSOR”) IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, THE ORDERING ENTITY (IF AN ENTITY AUTHORIZED TO ORDER UNDER A U.S. FEDERAL GSA SCHEDULE CONTRACT), OR THE LEGAL ENTITY THAT WILL BE LICENSING AND UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “YOU” OR “YOUR” OR “LICENSEE”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND UNITRENDS. BY CLICKING THE “I AGREE” OR “YES” BUTTON, OTHERWISE INDICATING ASSENT ELECTRONICALLY, LOADING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO FURTHER USE OF THE LICENSED SOFTWARE, PROMPTLY RETURN ANY MEDIA CONTAINING THE SOFTWARE AND REMOVE ANY ELECTRONIC COPIES OF THE SOFTWARE.
The terms and conditions of this AGREEMENT specify a limited right-to-use software license agreement and governs your acquisition and use of the software included with UNITRENDS equipment, the UNITRENDS software for virtual machines and any other Unitrends software provided to you directly from Unitrends or indirectly through a Unitrends authorized reseller or distributor (a “Reseller”), including any and all derivatives obtained therefrom, all UPGRADES (as defined below) provided to you, all copies, and all other programs and related documentation (“DOCUMENTATION”) provided with or accompanying the software (collectively, the SOFTWARE”). This AGREEMENT is effective between you and Unitrends as of the earlier of the date you first download or use the Software.
1. LICENSE GRANT
Subject to the terms and conditions of this AGREEMENT and the payment of fees specified in an accepted purchase order or an authorization for one or more license keys, UNITRENDS hereby grants to you a limited, personal, nontransferable, non-exclusive, worldwide license to use the SOFTWARE in object code form only on such computers, servers or equipment in which such SOFTWARE is embedded or for which such SOFTWARE is approved for license by UNITRENDS in the DOCUMENTATION and on such storage capacity as specified in the DOCUMENTATION (collectively, “APPROVED SYSTEMS”) for your internal business purposes. Any other use of the SOFTWARE is inconsistent with the terms and conditions of this
AGREEMENT, including without limitation, the transfer of the SOFTWARE to another computer or to another party, and shall automatically terminate this license. All rights not expressly granted to Licensee are retained by the Licensor.
You are permitted to make a single archive copy of the SOFTWARE, provided the SOFTWARE shall not be otherwise reproduced except as is necessarily incident to the execution of the SOFTWARE in APPROVED SYSTEMS. You will maintain and reproduce all trademark, copyright, patent, and other notices of proprietary rights on all copies, in any form, of the SOFTWARE in the same form and manner that such trademark, copyright, patent, and other notices of proprietary rights are included on the SOFTWARE.
The SOFTWARE and any and all associated license keys shall not be removed from a country
in which use is licensed or from any APPROVED SYSTEMS without UNITRENDS’ express written permission.
You agree that your use of the SOFTWARE licensed hereunder will comply with all federal, state and local laws, rules and regulations of the United States and any foreign country in which the SOFTWARE is used.
2. LICENSE KEYS
In order to use the SOFTWARE, you will need to purchase a license key. After Unitrends has received a valid purchase order or authorization which specifies the proper fees and identifies the platform and host name of each computer, server or other equipment on which the SOFTWARE is installed or will be installed, Unitrends will issue to you a license key subject to the prompt receipt of payment by Unitrends or its Resellers, as applicable. If payment is not received within thirty (30) days of the date due, Unitrends shall have the right to deactivate the license key and terminate this Agreement, and you will have no right to use the SOFTWARE.
The SOFTWARE is licensed and not sold. All right, title and interest in and to the SOFTWARE, including without limitation any and all intellectual property rights, are and will remain the sole and exclusive property of UNITRENDS or UNITRENDS’ suppliers.
You acknowledge and agree that the SOFTWARE is copyrighted and/or contains proprietary information, and the SOFTWARE shall not be disclosed to others in whole or in part. Except as otherwise expressly provided in this AGREEMENT, you will have no right, and you will not nor will you permit a third party to:
- Modify or otherwise adapt the SOFTWARE, or create derivative works based upon the SOFTWARE;
- Copy, in whole or in part, the SOFTWARE;
- Take any steps, such as reverse engineering, decompiling, reverse assembly, reverse compilation or translation, to reduce the SOFTWARE to human-readable form or derive source code equivalent of the SOFTWARE;
- Attempt to circumvent, disable or defeat the UNITRENDS license key encoded into the SOFTWARE;
- Transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the SOFTWARE in whole or in part to any third party;
- Use the SOFTWARE in a service bureau, or application service provider environment, or in any commercial time share arrangement or otherwise use or make available the SOFTWARE or
any party of the SOFTWARE for the benefit of any third party, or make the SOFTWARE or any part of the SOFTWARE publicly available for download or use via an internet website;
- Combine all or any part of the SOFTWARE with other software or use all or part the SOFTWARE to create a new product or application;
- Distribute any software or device incorporating all or part of the SOFTWARE;
- Use the SOFTWARE except on your own internal computer networks;
- Otherwise use the SOFTWARE on any computer that you do not own or control;
- Use the SOFTWARE in contravention to any applicable laws or government regulations; or
- Alter or remove any proprietary, trademark or copyright notices in the SOFTWARE.
If 4(C) is prohibited by applicable law, you shall provide UNITRENDS with a detailed prior written notice of any such intention to reverse engineer the SOFTWARE and shall provide UNITRENDS with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services provider for such work. You shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the SOFTWARE.
5. UPGRADES AND ADDITIONAL COPIES
For purposes of this AGREEMENT, the term “SOFTWARE” also includes (and the terms and conditions of this AGREEMENT will apply to) any and all upgrades, updates, bug fixes or modified versions (collectively, “UPGRADES”) and additional copies of the SOFTWARE, in each case, which are licensed by you, or provided to you under support and maintenance services, for which you have paid the applicable license fees and hold the corresponding license keys. Notwithstanding the foregoing, UNITRENDS will have no obligation to provide any UPGRADES or additional copies of the SOFTWARE under this AGREEMENT. If any UPGRADES or additional copies are provided (i) you have no license or right to use any such UPGRADES or additional copies unless you, at the time of acquiring such UPGRADE or copy, already hold a valid license and the corresponding license keys to the original SOFTWARE; and (ii) use of the UPGRADES is limited to APPROVED SYSTEMS for which the original SOFTWARE was purchased.
6. LIMITED WARRANTY AND DISCLAIMER
- Subject to the provisions of this Section 6, UNITRENDS warrants only that the SOFTWARE will conform in all material respects to its published documentation for a period of thirty (30) days from the date Unitrends or its Reseller provides you with the associated license key(s). Your sole and exclusive remedy for any breach by UNITRENDS of this warranty is for UNITRENDS or its designated third party service provider to, at UNITREND’s option and in its sole discretion, either (i) repair or replace, at UNITRENDS’ option and without charge to you, any SOFTWARE which is not in conformity with the foregoing warranty or (ii) to refund the license fees paid by you for the SOFTWARE instead of repairing or replacing the This limited warranty extends only to you as original licensee. This warranty is subject to the following conditions: (i) the SOFTWARE is installed by UNITRENDS’ authorized representatives or installed in accordance with all of UNITRENDS’ installation instructions by personnel trained by UNITRENDS; and (ii) you notify UNITRENDS within the applicable warranty period in the
event of a breach of warranty. This warranty does not cover (x) any defect or deficiency which results from: (1) any alteration, repair or maintenance of the SOFTWARE by anyone other
than UNITRENDS; (2) failing to follow in all material respects UNITRENDS’ written recommendations or instructions; (3) using or combining the SOFTWARE with products or services of others, other than under UNITRENDS direction; (4) any of your designs, specifications or instructions; or (5) any abnormal physical or electrical stress, or any
accident, misuse, abuse or other cause external to the SOFTWARE as furnished by UNITRENDS
and beyond UNITRENDS’ reasonable control; (y) any software support not strictly necessary to correct warranty defects as provided herein and (z) any third party software, supplies or accessories included with the SOFTWARE. Such third party products are provided with the owner’s or manufacturer’s warranties, if any, which UNITRENDS is permitted to pass on to you. OTHERWISE, SUCH THIRD PARTY PRODUCTS ARE PROVIDED TO YOU “AS IS”.
- EXCEPT AS SET FORTH IN SECTION A. ABOVE, NO OTHER WARANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE IS MADE BY UNITRENDS, ITS AFFILIATES, CONTRACTORS, SUPPLIERS OR AGENTS AND ANY AND ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY OR INTEGRITY, NON-INFRINGEMENT OR QUIET ENJOYMENT. UNITRENDS does not represent or warrant that: (i) the SOFTWARE will operate error-free; (ii) your use of the SOFTWARE will be uninterrupted; (iii) all defects will be identified, reproducible, or resolved; (iv) the SOFTWARE will meet your particular business needs; or (v) the SOFTWARE will be immune from unlawful or unauthorized access or use by third parties, including computer hacking, tampering, corruption or destruction of the SOFTWARE.
- UNITRENDS has used reasonable efforts to minimize defects or errors in the However, you assume the risk of any and all liability, damage or loss from use, or inability to use the SOFTWARE.
- This AGREEMENT is only applicable to SOFTWARE running under the certified environments specified in the applicable DOCUMENTATION for that UNITRENDS may at any time, with or without notice, discontinue the SOFTWARE and/or stop supporting the SOFTWARE.
7. LIMITATIONS ON LIABILITY
- IN NO EVENT WILL UNITRENDS OR ANY OF ITS AFFILIATES, CONTRACTORS SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES FOR ANY ACT OR OMISSION ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR WITH THE SALE, DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, PERFORMANCE OR USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY LOSSES, EXPENSES, OR DAMAGES INCURRED BY REASON OF LOSS OF USE, LOST REVENUES OR PROFITS, COSTS ASSOCIATED WITH DOWN-TIME, COSTS OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, LOST, DAMAGED OR DESTROYED DATA AND ANY SIMILAR OR DISSIMILAR DAMAGES, EXPENSES OR LOSSES, EVEN IF FORESEEABLE OR IF UNITRENDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- The entire liability of UNITRENDS to you, and your sole and exclusive remedy, for any claim or cause of action arising hereunder (whether in contract, tort, or otherwise) will not exceed the total amount of fees paid hereunder as of the date such claim or cause of action UNITRENDS will not have any tort liability to you arising from this AGREEMENT including for claims
relating to negligence or defects in product design or manufacture; provided, however, that this limitation does not affect claims by third parties for personal injury due to UNITRENDS’ negligence. You acknowledge and agree that his limitation of liability shall apply even if the exclusive remedies provided in this AGREEMENT fail of their essential purpose.
- You agree that in the event any claim, suit or proceeding is brought against UNITRENDS in connection with the SOFTWARE or this AGREEMENT, such claim, suit or proceeding will be brought or filed in the courts of the State of South Carolina, United States of America, and that any such claim, suit or proceeding will be governed by the laws of the State of South Carolina, United States of America, without regard to its choice of law Notwithstanding the foregoing, and with respect solely to Licensees that are the U.S. Government or entities thereof, this AGREEMENT shall be governed by the laws of the United States.
- Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this AGREEMENT are material to this AGREEMENT and that they have 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
8. TERM AND TERMINATION
- Licensees Other Than the U.S. Government: The Licensee will be bound for the entire Term of this Agreement. “Term” is defined as the period of time beginning on the Effective Date and ending on the date set forth in the quote, statement of work, purchase order, or other document that describes the commercial terms, services and/or deliverables licensed under the Agreement (“Order Form”), or, if later, the expiration date of any Order Form. If the Order Form does not contain a termination date, the Term shall be deemed to end on the later of the three-year anniversary of the Effective Date and the expiration date of any Order Form. Except as otherwise specified in an Order Form, at the end of any Term, subscriptions will automatically renew for additional Terms equal to the greater of the expiring Term length or three (3) years, unless either party gives the other party notice of non-renewal at least 30 days and no more than 60 days before the end of the relevant Term. Except as otherwise specified in an Order Form, pricing during any automatic renewal Term will be the same as that during the immediately preceding Term plus an increase not to exceed five percent (5%) plus any increase in the Consumer Price Index published by the U.S. Bureau of Labor Statistics during the immediately prior year, in Unitrends’s sole discretion.
- U.S. Government Licensees:
- Termination for the U.S. Government Licensee’s convenience. The Government Licensee reserves the right to terminate this AGREEMENT for its sole convenience. In the event of such termination, all of your license rights under this AGREEMENT shall terminate immediately. Subject to the terms of this AGREEMENT and the contract under which this AGREEMENT is made a part of, UNITREND shall be paid a percentage of the contract price reflecting the percentage of the license used, prior to the notice of termination, plus reasonable charges UNITREND can demonstrate to the satisfaction of the Government Licensee using UNITREND’s standard record keeping system, have resulted from the termination. UNITREND shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Government Licensee any right to audit UNITREND’s records.
- Termination for cause. The Government Licensee may terminate this AGREEMENT for cause in the event of any default by UNITRENDS, or if UNITRENDS fails to comply with any terms and conditions of the AGREEMENT, or fails to provide the Government Licensee, upon request, with adequate assurances of future In the event of termination for cause, the Government Licensee shall not be liable to UNITRENDS for any amount for supplies or services not accepted, and UNITRENDS shall be liable to the Government Licensee for any and all rights and remedies provided by law. If it is determined that the Government Licensee improperly terminated this AGREEMENT for default, such termination shall be deemed a termination for convenience.
9. EQUITABLE RELIEF
You acknowledge and agree that a breach of this AGREEMENT adversely affecting UNITRENDS’ proprietary rights in the SOFTWARE would cause irreparable injury to UNITRENDS for which monetary damages would not be an adequate remedy and that UNITRENDS will be entitled to equitable relief in addition to any remedies it may have
hereunder or at law. Notwithstanding the foregoing, and solely with respect to Licensees that are the U.S. Government or entities thereof, the Licensee makes no acknowledgements nor representations whatsoever regarding equitable relief and UNITRENDS acknowledges that there may be no entitlement to, or availability of, equitable relief. Furthermore, depending
on the nature of UNITRENDS’ claim, UNITRENDS acknowledges that a direct cause of action against the United States for patent or copyright infringement by, or on behalf of, the United States may arise under 28 U.S.C. § 1498.
10. CONFIDENTIAL INFORMATION
You agree not to disclose or, except as expressly permitted in this AGREEMENT, to use any SOFTWARE or other technical information disclosed to you by UNITRENDS (“CONFIDENTIAL INFORMATION”). You will take all reasonable measures to maintain the confidentiality of all CONFIDENTIAL INFORMATION in your possession or control, which will in no event, be less than the measures you use to maintain the confidentiality of your own information of equal importance.
11. COMPLIANCE WITH LAWS
You will strictly comply with all applicable laws, rules and regulations in connection with your use of the SOFTWARE. Without limiting the foregoing, the SOFTWARE, including technical data, is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will comply strictly with all such regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import the SOFTWARE.
12. U.S. GOVERNMENT RIGHTS
The SOFTWARE is Commercial Computer Software as that term is defined in the Federal Acquisition Regulation (“FAR”), 48 C.F.R. 2.101, and includes commercial technical data, commercial computer software documentation. The SOFTWARE is Commercially Available Off-the-Shelf (“COTS”), as that term is defined in the FAR. If licensed by or on behalf of a civilian agency, the U.S. Government Licensee acquires this COTS Software subject to UNITRENDS’ customary commercial license, and the Government Licensee’s rights to use, modify, reproduce, release, perform, display, or disclose the COTS commercial computer software and/or COTS commercial computer software documentation, is as set forth in this AGREEMENT, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors. If licensed by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government Licensee acquires this COTS Software subject to UNITRENDS’ customary commercial license, and the Government Licensee’s rights to use, modify, reproduce, release, perform, display, or disclose the COTS commercial computer software and/or COTS commercial computer software documentation is as set forth in this AGREEMENT, as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the UNITRENDS Software licensed under this AGREEMENT and in any contract or subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.
If any provision of this AGREEMENT is held by a court of competition jurisdiction to be void or unenforceable, the remainder of this AGREEMENT will remain in full force and will not be terminated. UNITRENDS will not be liable for any delays resulting from circumstances or causes beyond its reasonable control. No addition to or modification of this AGREEMENT will be effective unless made in writing and signed by UNITRENDS. Any delay or failure to enforce at any time any provision of this AGREEMENT will not constitute a waiver thereof or of any other provision or any right to enforce any such provision. The rights and remedies expressly provided to UNITRENDS herein are not exclusive, but are cumulative and in addition to any other remedies available at law or in equity. You will not assign this AGREEMENT or any right or interest under this AGREEMENT without UNITRENDS’ prior written consent. Any attempted assignment without consent will be void. All notices must be in writing and delivered by certified mail (return receipt requested), overnight, courier, or facsimile with confirmation.