This StorMagic SvHCI Beta Version Service Agreement (the “Agreement”) is made between StorMagic Ltd, a company incorporated in England and Wales with company registered number 05706971 and registered office address at The Quadrant, 2430/2440, Aztec West, Almondsbury, Bristol, BS32 4AQ, United Kingdom (“StorMagic”), and the entity (“The Company”, “you”, “your”) downloading the trial SvHCI Beta software (“The Product”).
The Product is a beta version of the forthcoming integrated SvHCI. It in no way should be considered a true version of the SvHCI product that will be released and may contain features that may not be available within the SvHCI product that will be released.
The trial is available to new or existing StorMagic customers, channel partners and/or OEMs interested in getting early access to The Product.
By downloading and accessing The Product, The Company agrees to adhere to the following conditions and all requirements listed below. If, after reading these terms and conditions, you do not accept or agree to the terms and conditions contained herein, The Company shall not use, or access The Product. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you are duly authorised to do so and you have the full power, corporate or otherwise, to enter into this Agreement and perform its obligations hereunder.
Deployment
StorMagic hereby grants to The Company a non-exclusive, worldwide, non-transferable, non-sublicenseable, internal right to access and use The Product. The Product can only be downloaded to a pre-production lab environment, owned and controlled by The Company, with only test workloads, and should never be deployed in a production environment. The Product is a stand-alone beta version, and it cannot be transferred to a production environment later without a new SvHCI subscription. StorMagic recommends The Company read all release notes relating to limitations to functionality and known issues, available at https://support.stormagic.com/hc/en-gb/articles/19537302891805-Release-Notes-SvHCI-1-2-0-Beta-version, prior to The Company deploying The Product.
The Company shall not: (a) knowingly interfere with service to any of StorMagic’s users, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing The Product; (b) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on The Product; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in The Product in any form to any person without the written consent of StorMagic; (d) remove any proprietary notices, labels, or marks from The Product; or (e) create any “links” to or “frame” or “mirror” The Product or any portion thereof.
Feedback
During The Product trial, The Company may provide reasonable feedback to StorMagic including, but not limited to, suitability, problem reports, suggestions and other information with respect to The Product (“Feedback”). The company hereby grants to StorMagic a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the SvHCI product and any other StorMagic products or services, or for any other purposes, any Feedback provided by The Company.
Support
The Product does not come with any guaranteed support, but StorMagic requires all product usage feedback, requests, and technical queries to be sent by email to [email protected]. StorMagic will review all notifications and reply when possible.
Confidentiality
All information relating to The Product, including its design, functionality, use, limitations, issues, ease or difficulty of use, know-how, designs, code, engineering details, including data, and any information or Feedback from The Company (whether written, oral, visual, screenshots, electronic, magnetic, digital, or in any other form) (collectively, “Confidential Information”) relating to The Product is confidential and cannot be shared with anyone outside The Company. Any person with The Company who receives Confidential Information must be made aware of the confidentiality obligations hereunder that have been accepted by The Company. The Company agrees to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If The Company is compelled by law to disclose the Confidential Information, it shall provide notice to StorMagic with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if StorMagic wishes to contest the disclosure. In connection with use of The Product, The Company shall establish and maintain adequate security measures to safeguard the Confidential Information relating to The Product from unauthorised access or use. StorMagic reserves the right to any legal actions, to the full extent possible under the laws of England and Wales, for any failure to comply with this confidentiality.
Open-Source Software
Some portions of The Product might contain open-source software subject to open-source terms applicable for each such portion. Such open-source software is supplied to you under the applicable open-source software terms and is not subject to the terms of this Agreement to the extent the terms of this Agreement conflict with such applicable open-source terms. The Product provided by StorMagic is provided solely on the applicable terms and conditions of the relevant open-source software licensor and The Company agrees that StorMagic shall have no liability to The Company in respect of such open-source software.
Indemnification
The Company shall defend, indemnify and hold StorMagic harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against StorMagic by a third party (a) alleging that The Company’s use of The Product in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of this Agreement; or (c) caused by any negligent act or omission of The Company or its employees, contractors or agents.
Limits of Liability
IN NO EVENT SHALL STORMAGIC HAVE ANY LIABILITY TO THE COMPANY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM THE COMPANY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; (II) INDEMNIFICATION CLAIMS; (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) FRAUD OR WILLFUL MISCONDUCT; OR (VI) BODILY INJURY OR DEATH.
Warranties
THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND STORMAGIC MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE PRODUCT; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR FROM STORMAGIC VIA THE PRODUCT. STORMAGIC DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET ANY OR ALL OF YOUR PARTICULAR REQUIREMENTS, THAT THE PRODUCT WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE PRODUCT CAN BE FOUND IN ORDER TO BE CORRECTED.
Intellectual Property Rights
StorMagic and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to The Product and related software, materials, and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of The Product and subject to all of the provisions of this Agreement. The Company shall keep The Product free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, StorMagic reserves all rights, title and interest in and to The Product. No rights are granted to The Company pursuant to this Agreement other than as expressly set forth in this Agreement.
General
This Agreement constitutes the entire Agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of the subject matter of this Agreement, whether in writing or oral. The Company agrees that in entering into this Agreement, it does not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into commitments for or on the behalf of any other party. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.
No variation of this Agreement shall be effective unless it is in writing and signed by both StorMagic and The Company (or their authorised representatives).
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, and the parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement shall continue in full force and effect once The Product has been downloaded, notwithstanding any decision by The Company not to proceed with the testing.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
The Company may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of StorMagic.