PLEASE READ THE STORMAGIC EULA CAREFULLY BEFORE INSTALLING OR USING STORMAGIC SOFTWARE.

This license agreement (“License”) is a legal agreement between the end-user (“End User” or “you”) and the StorMagic entity providing the software product (the applicable providing entity is hereinafter referred to as “StorMagic”).

Your location for the purposes of receiving the StorMagic software product (hereinafter “Product”) and services (hereinafter “Services”) determines the providing StorMagic entity. This is detailed at Entities & Choice of Law – StorMagic .

StorMagic offer its Product and Services in various capacities and license models. A complete list of Product and Services options is made available directly to the End User, or indirectly via StorMagic’s Partners, through its Price Lists. The specific type of the Product and any Services shall be as set out in the applicable Purchase Order.

Stormagic licenses use of the Product to you on the basis of this License. StorMagic does not sell the Product to you. Stormagic remains the owner of the Product at all times.

IMPORTANT NOTICE TO ALL USERS:
BY INSTALLING OR USING STORMAGIC SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE WHICH BIND YOU AND YOUR EMPLOYEES. THE TERMS OF THIS LICENSE INCLUDE IN PARTICULAR, LIMITATIONS ON WARRANTY AND LIABILITY.

STORMAGIC LICENSE AGREEMENT

1. Definitions:

1.1 When used in this License with initial letters capitalized, these terms shall have the following meaning:

“Account” means any accounts or instances created by, or on behalf of, the End User or its Affiliates within the Product.
“Additional Feature(s)” means additional features or functionality that are available or enabled through the Product, but do not form part of the Product.
“Affiliate(s)” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise, where such control is more than fifty percent (50%) of the voting interests of the subject entity.
“Confidential Information” means all information disclosed by one party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including but not limited to the pricing terms, product plans and designs, business processes, security notifications, and customer advocacy communications.
“Contract Start Date” shall be as detailed in the applicable Purchase Order.
“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Data Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time), the United States (including the California Consumer Privacy Act of 2018 (“CCPA”)), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the processing of Personal Information under the Agreement.
“Defect” means a failure in Product to conform to the specifications in the Documents.
“Documents” means the written or electronic documents, including user manuals, reference materials, installation manuals and/or release notes, if any, that StorMagic generally makes available to its customers; provided that, Documents shall specifically exclude any “community moderated” online forums, whether or not made available by StorMagic or accessible through a StorMagic Site.
“Error” means a failure in the Product to materially conform to the functionality defined in the Documents.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Intellectual Property Rights” means any and all of a Party’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“License” means this License together with any Purchase Order and other mutually executed documents which reference this License.
“License Key” means a serial number provided by StorMagic that enables the End User to activate and use the Product.
“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
“Partner” means an authorised reseller or distributor of the Products.
“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
“Price Lists” means a document or electronic resource provided by StorMagic that specifies the current fees and charges for the Products and Services including various license types, subscription options, support services, and any applicable add-ons or features.
“Product” means a StorMagic software product.
“Service Data” means all electronic data, text, messages, communications or other materials submitted to and stored within a Product by the End User and its Users in connection with the End User’s use of such Products, excluding User Business Contact Information.
“Services” Professional Services means specialized, expertise-based assistance provided by StorMagic, including but not limited to, software installation, configuration, and setup.

Support & Maintenance Services means the provision of technical assistance and software updates, including bug fixes, security patches, and minor version releases, for the purpose of ensuring the Software’s proper functioning and addressing user issues, as further defined in any associated support and maintenance contract.
“Storage Capacity” refers to the maximum amount of digital data that the Product permits the End User to manage, provision, or utilize, as specified in the applicable product options on the Price Lists.
“Subscription Term” means the term of the subscription detailed in the applicable Purchase Order.
“Systems” The End User’s hardware, applications, data, interfaces, tools, software (excluding the Product).
“Term” shall be as defined in clauses 2.4 (c) and (d).
“Usage Data” shall be as defined in clause 2.10.
“User” means an individual who is authorized by the End User (or the End User’s Affiliates) to use the Product through the End User’s Account as a standard User and/or Administrator, each as identified through an individual User Login. Users may include, for example, employees, consultants, contractors and agents of the End User, and third parties with which the End User transacts business.
“User Business Contact Information” means Personal Information about the End User’s Users, such as their name and email address, that StorMagic stores separate from the Products in order to, among other things, communicate with the End User’s Users related to StorMagic’s provision and support of Products. User Business Contact Information is not considered Service Data.

2. GRANT AND SCOPE OF LICENSE.

2.1. In consideration of payment by the End User of the agreed license fee, the End User’s agreement to abide by the terms of this License and subject to clause 2.2, StorMagic grants End User a non-exclusive, worldwide, non-transferable, non-sublicensable, right to use the Product and the Documents on the terms of this License.

2.2. During the Term, the End User may, in accordance with the terms of this License:

  1. access and use, and permit Users to access and use, the Product for internal business purposes; and
  2. access and use, and to permit Users to access and use, the Documents as reasonably necessary to support End User’s permitted use of the Product during the Term.

2.3. Any experimental, technical preview or beta features delivered with the Product will be identified and are licensed for internal testing purposes only.

2.4. License Types:

  1. Evaluation or Trial License: If a Product is “Evaluation”, or a “Trial License” notwithstanding any term to the contrary in this License, your license permits use only for your internal demonstration, test, or evaluation purposes, and not for any other purpose, including without limitation production purposes. Your license is for a limited period of days communicated at the time of registration for the evaluation with no right to Services, warranty, or indemnification. Note that an Evaluation Product may disable itself upon the expiration of the License Key. In no event may an Evaluation Product be used beyond expiration.
  2. Not For Resale (NFR) License: If a Product is purchased as a NFR License the End User is granted a limited-use license at a reduced or no cost, solely for demonstration, evaluation, training, or partner enablement purposes, and expressly prohibits resale or commercial distribution.
  3. Perpetual License: If a Product is purchased with a base license the End User is granted a license to use the Product indefinitely, subject to the terms of this License and associated Service contracts (if any).
  4. Subscription License: If a Product is purchased as a subscription license, the End User is granted a license to use the Products for the term detailed in the applicable Purchase Order, subject to the terms of this License. A Subscription License includes Support & Maintenance Services for the whole of the purchased Subscription Term.

2.5. Storage Capacity.

  1. Certain Products, as detailed in the Price Lists are tiered by Storage Capacity.
  2. The End User acknowledges and agrees that these Products shall only be used to facilitate the creation and maintenance of the Storage Capacity purchased by the End User pursuant to the terms of this License.
  3. The End User may increase the Storage Capacity at any time during the Term by purchasing additional Storage Capacity. The End User acknowledges and agrees that once additional Storage Capacity is purchased, the End User shall not subsequently be able to reduce the amount of Storage Capacity available.
  4. The End User acknowledges and agrees that the amount of Storage Capacity shall be limited by any restrictions contained in the End User’s Systems, including the physical capacity of such Systems.

2.6. Archive Copy. You may make one (1) copy of the Product in machine-readable form solely for back-up, provided that you reproduce all proprietary notices on the copy.

2.7. Usage Data. Notwithstanding anything to the contrary in this License, the End User acknowledges that the Products may provide Usage Data to StorMagic and StorMagic may monitor the End User and its Users’ use of the Products and collect, and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and the End User’s and its Users’ use, of the Products (“Usage Data”).

2.8. Modifications. The End User acknowledges that StorMagic may modify the features and functionality of the Product during the Term without notice. Notwithstanding the foregoing, StorMagic shall provide the End User with thirty (30) days’ advance notice of any reduction or degradation of any material feature or functionality of the Product, or any other material change that may affect he End User’s use of the Product. StorMagic will not materially decrease the overall functionality of the Product purchased by the End User during the Term.

2.9. Extension of Rights to Affiliates. The End User may extend its rights and benefits provided herein to its Affiliates and to contractors or service providers acting on the End User’s or the End User’s Affiliates’ behalf, provided that the End User remains responsible for their compliance hereunder. An Affiliate may also directly purchase Products or Services pursuant to the terms of this License provided that such Affiliate (i) executes a Purchase Order for such Products or Services; and (ii) agrees to be bound by the terms of this License as if it were an original party hereto. The End User authorizes StorMagic to share the content of this License with the End User’s Affiliates.

3. USE OF PRODUCTS

3.1. Login Management. To access the Products, User is required to open an Account. An Account administrator (“Administrator”) will have the ability to add Users as required. All User Accounts and User logins are the responsibility of the Administrator and must be cancelled by the Administrator when no longer required. The End User and Users are responsible for maintaining the confidentiality of all User login information for an Account. The End User may not use the Product to circumvent the requirement for an individual User Login.

3.2. License Keys.

  1. Your license to the Product will be activated by License Keys that allow use of the Product.
  2. The End User shall:
    • (i) only permit License Keys to be used to activate or access the Service on its Systems;
    • (ii) keep confidential, and shall not share with any third parties, details of License Keys; and
    • (iii) report any unauthorised disclosure, access or use of a License Keys to StorMagic as soon as reasonably practicable upon becoming aware of the same.
  3. License Keys for other StorMagic products or other editions of the same Product may not be used to increase the allowable use for End User’s edition of the Product.

3.3. Compliance. The End User is responsible for compliance with the provisions of this License by its Users and for any and all activities that occur under an Account, which StorMagic may verify from time to time. Without limiting the foregoing, the End User will ensure that its use of the Product is compliant with all applicable laws and regulations as well as any and all privacy notices, agreements or other obligations the End User may maintain or enter into with Users.

3.4. Restrictions. The End User shall not (and shall not allow Users or any third party to):

  1. possess, download or copy the Product or any part of the Product, but not including any output from the Product;
  2. copy the Product or Documents except where such copying is incidental to normal use of the Product, or where it is necessary for the purpose of back-up or operational security;
  3. modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product and/or Documents, except to the extent permitted by applicable law, or otherwise attempt to extract any or all of the source code of, the Product;
  4. knowingly interfere with service to any of StorMagic’s users, hosts or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Product;
  5. circumvent any timing restrictions that are built into the Product;
  6. sell, resell, sublicense, rent, lend, transfer, distribute, license, or grant any rights in the Product or Documents in any form to any person without the written consent of StorMagic;
  7. remove any proprietary notices, labels, or marks from the Product or Documents; or
  8. create any “links” to or “frame” or “mirror” of the Product or any portion thereof.

3.5. The End User shall comply with all applicable technology control or export laws and regulations

3.6. Suspension. StorMagic may immediately suspend all or part of the End User’s use of the Products if,

  1. StorMagic reasonably believes the End User’s Products could adversely impact the Products, other customers’ or their end users’ use of the Products, or servers used to provide the Products;
  2. there is suspected unauthorized third-party access to the Products;
  3. StorMagic reasonably believes that immediate suspension is required to comply with any applicable law; or
  4. The End User is in breach of clause 3.4 (Restrictions).

StorMagic will lift any suspension when the circumstances giving rise to the suspension have been resolved. At the End User’s request, StorMagic will, unless prohibited by applicable law, notify the End User for the basis for the suspension as soon as is reasonably possible.

4. SUPPORT AND MAINTENANCE SERVICES

4.1. Where End Users are purchasing Products with a

  1. Perpetual License: End Users are required to purchase separately, at the time of purchasing the Product, a minimum 1 year of Support & Maintenance Services. At the end of the initial 1 year, End Users may renew the Support & Maintenance Services contract.
  2. Subscription License: Support & Maintenance Services for the Subscription Term are included with Products.

4.2. Support & Maintenance Services for each license type shall commence on the Contract Start Date.

4.3. A valid Support & Maintenance Services contract is required to receive access to minor and major software updates, including bug fixes and new feature releases as well as log technical support tickets. Any deliveries of updates shall be electronic.

4.4. The available Support & Maintenance Services plans are detailed at https://stormagic.com/licensing/products, and plan entitlements and requirements are explained at https://stormagic.com/licensing/m-s/.

4.5. A Support & Maintenance Services plan may be purchased for the Product until it is no longer offered in accordance with the applicable StorMagic Product Lifecycle Support Policy posted at https://stormagic.com/licensing/m-s/.

5. PROFESSIONAL SERVICES.

5.1. In addition to the Support & Maintenance Services plan, the End User may also purchase Professional Services. The provision of technical support or professional services is dependent on the following responsibilities being fulfilled by the End User:

  1. The End User agrees to perform reasonable problem determination activities and to perform reasonable problem resolution activities as suggested by Stormagic;
  2. The End User is responsible for implementing procedures necessary to safeguard the integrity and security of software and data from unauthorized access and for reconstructing any lost or altered files resulting from catastrophic failures;
  3. The End User is responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware at its site and providing StorMagic with access to its facilities as required to operate the Product and permitting StorMagic to perform the service; and
  4. The End User is required to implement all currently available and applicable software hotfixes, hotfix rollup packs, and service packs or their equivalent for the Product in a timely manner.

5.2. StorMagic is not required to provide any technical support for problems arising out of:

  1. The End User or any third party’s alterations or additions to the Product, operating system or environment;
  2. StorMagic provided alterations or additions to the Product that do not address Errors or Defects;
  3. any functionality not defined in the Documents;
  4. use of the Product on a processor or peripherals other than the processor and peripherals defined in the Documents; and
  5. any Product that has reached end-of-life.

6. INTELLECTUAL PROPERTY RIGHTS

6.1. Intellectual Property Rights. The End User acknowledges that all Intellectual Property Rights in the Product and the Documents anywhere in the world belong to StorMagic, that rights in the Product are licensed (not sold) to the End User, and that the End User has no rights in, or to, the Product or the Documents other than the right to use them in accordance with the terms of this License.

6.2. The End User acknowledges that it has no right to have access to the Product in source code form.

6.3. With respect to the Professional Services, all Intellectual Property Rights in all deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the assessment are and shall remain the sole property of Stormagic, subject to a worldwide, non-exclusive license granted to the End User for internal use.

6.4. Feedback. StorMagic shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Products or otherwise use any suggestions, enhancement requests, recommendations or other feedback regarding the Products that StorMagic receives from the End User, Users, or other third parties acting on the End User’s behalf (“Feedback”). StorMagic also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.

6.5. Usage Data. As between StorMagic and the End User, all right, title, and interest in Usage Data, including all Intellectual Property Rights therein, belong to and are retained solely by StorMagic. StorMagic may use Usage Data to support (including to improve) the Product, develop new products and services, and for any other business purpose, without compensation to or the approval or consent of the End User, provided that the Usage Data does not contain any Personal Information.

6.6. Ownership of Service Data. The End User shall retain ownership rights, including all Intellectual Property Rights, to all Service Data processed under the terms of this License.

6.7. StorMagic may develop and market new or different software offerings or editions of the Product that use portions of the Product and that perform all or part of the functions performed by the Product. Nothing contained in this License shall give the End User any rights with respect to such new or different offerings or editions.

7. PERSONAL DATA

7.1. StorMagic shall comply with StorMagic’s Data Protection Policy Data Protection Policy – StorMagic with regard to any personal data shared under this License.

8. WARRANTIES

8.1. StorMagic Warranties. StorMagic warrants that (i) when properly used; and (ii) for the period the End User has a valid Support & Maintenance Services contract in place (“Warranty Period”).

  1. the Product will perform substantially in accordance with functions described in the applicable Documents; and
  2. that the Documents correctly describe the operation of the Product in all material respects,
  3. the Product will not contain any Malicious Software; and
  4. it owns or otherwise has sufficient rights in the Product and Documents to grant to the End User the rights granted herein.

8.2. Remedies. If, within the Warranty Period, the End User notifies StorMagic in writing of any defect or fault in the Product as a result of which it fails to perform substantially in accordance with the Documents, StorMagic will, at its sole option, either repair or replace the Product, provided that the End User makes available all the information that may be necessary to help StorMagic to remedy the Error or Defect, including sufficient information to enable StorMagic to recreate the Error or Defect.

8.3. The warranty does not apply:

  1. if the Error or Defect results from the End User having altered or modified the Product; and
  2. if the Error or Defect in the Product results from the End User having used the Product in breach of the terms of this License.

8.4. Exclusive Remedies. The End User’s exclusive remedies for breach of warranty are those described in this clause 8.

8.5. Disclaimers. Except for the express warranties provided herein, the Professional Services, and the Products, are provided “as is” and “as available”, and StorMagic expressly disclaims any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. The End User acknowledges that StorMagic does not warrant that the Products will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by the End User from StorMagic or through the Products shall create any warranty not expressly stated in this License.

9. INDEMNITIES

9.1. Intellectual Property Infringement Indemnity. StorMagic will indemnify and defend the End User from and against any third party claim brought against the End User alleging that the End User’s use of the Products as permitted hereunder infringes or misappropriates a third party’s Intellectual Property Rights (an “IP Claim”). StorMagic shall, at StorMagic’s expense, defend such IP Claim and pay damages finally awarded against the End User in connection therewith, including reasonable legal fees, provided that

  1. The End User promptly notifies StorMagic of the threat or notice of such IP Claim;
  2. StorMagic will have sole, exclusive control and authority to defend and/or settle any such IP Claim (however, StorMagic shall not settle or compromise any claim that results in liability or admission of any liability by the End User without the End User’s prior written consent); and
  3. The End User fully cooperates with StorMagic in connection therewith.

9.2. If use of a Product by the End User or Users has become, or, in StorMagic’s opinion, is likely to become, the subject of any such IP Claim, StorMagic may, at StorMagic’s option and expense

  1. procure for the End User the right to continue using the Product;
  2. replace or modify a Product to make it non-infringing; or
  3. if options (a) or (b) are not commercially reasonable or practicable as determined by StorMagic, terminate this License and repay the End User, on a pro-rata basis, any fees paid to StorMagic for the unused portion of the Term.

9.3. StorMagic will have no liability or obligation under this clause 9 with respect to any IP Claim if such claim is caused in whole or in part by

  1. compliance with designs, data, instructions or specifications not authorized by StorMagic;
  2. modification of the Product by anyone other than StorMagic or StorMagic authorized agents; or
  3. the combination, operation or use of the Product with other hardware or software where a Product would not by itself be infringing.

9.4. The provisions of this clause 9 details the sole, exclusive and entire liability of StorMagic to the End User and the End User’s sole remedy with respect to an IP Claim brought by reason of access to or use of a Product by the End User or Users.

9.5. Indemnification by the End User. The End User will indemnify, defend and hold StorMagic harmless against any third party claim brought against StorMagic

  1. alleging that the End User or a User’s use of a Product in breach of this License (and not arising solely from the Product itself) is infringing the Intellectual Property Rights or has otherwise harmed a third party;
  2. based on a breach of any Data Protection Laws or a breach of this License; or
  3. arising out of or relating to any Service Data, including any processing of Service Data by or on behalf of StorMagic in accordance with this License; provided that
    • (i) StorMagic promptly notifies the End User of the threat or notice of such claim;
    • (ii) The End User will have the sole and exclusive control to defend and/or settle any such claim (however, the End User shall not settle or compromise any claim that results in liability or admission of any liability by StorMagic without StorMagic’s prior written consent); and
    • (iii) StorMagic fully cooperates with the End User in connection therewith.

10. LIMITATION OF LIABILITY

10.1. The End User acknowledges that the Product has not been developed to meet its individual requirements, including any particular cybersecurity requirements the End User might be subject to under law or otherwise, and that it is therefore the End User’s responsibility to ensure that the facilities and functions of the Product as described in the Documents meet the End User’s requirements.

10.2. StorMagic only supply the Products and Documents for internal use by the End User’s business, and the End User agrees not to use the Product or Documents for any re-sale purposes.

10.3. StorMagic shall not in any circumstances whatever be liable to the End User, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the License for:

  1. loss of profits, sales, business, or revenue;
  2. business interruption;
  3. loss of anticipated savings;
  4. wasted expenditure;
  5. loss or corruption of data or information;
  6. loss of business opportunity, goodwill or reputation;
    where any of the losses set out in clause 10.3(a) to clause 10.3(f) are direct or indirect; or
  7. any special, indirect or consequential loss, damage, charges or expenses.

10.4. Other than the losses set out in clause 10.3 (for which StorMagic is not liable), StorMagic’s maximum aggregate liability under or in connection with this License whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the agreed License fee invoiced by StorMagic to the End User in the 12-month period preceding the loss or damages giving rise to the claim; or if fulfilled through a Partner 100% of the agreed license fee invoiced by StorMagic to its Partner in the 12 month period preceding the loss or damages giving rise to the claim. This maximum cap does not apply to clause 10.5.

10.5. Nothing in this License shall limit or exclude Stormagic’s liability for:

  1. death or personal injury resulting from StorMagic’s negligence; or
  2. fraud or fraudulent misrepresentation.

10.6. This License sets out the full extent of Stormagic’s obligations and liabilities in respect of the supply of the Product and Documents. Except as expressly stated in this License, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Stormagic. Any condition, warranty, representation or other term concerning the supply of the Product and Documents which might otherwise be implied into, or incorporated in, this License whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

10.7. Jurisdiction-specific exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, or for a party’s own fraud, willful injury to the person or property of another, or violation of law, which means that some of the above limitations may not apply to the End User. In these jurisdictions, Stormagic’s liability will be limited to the greatest extent permitted by law.

11. TERM AND TERMINATION

11.1. Term. The term of the License will begin on the Contract Start Date and shall continue as detailed in clause 2.4 (c) and (d).

11.2. Termination for Cause. Either party may terminate this License, and the applicable Purchase Order, immediately by written notice to the other Party if that other party commits a material or persistent breach of this License which the breaching party fails to remedy (if remediable) within thirty (30) days from the date of receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

11.3. Subscription License

  1. Subscription Term. This License shall remain in effect until (i) the end of the Subscription Term; or (ii) the applicable Purchase Order is terminated in accordance with the terms of this License.
  2. Renewal. Unless a subscription to a Product is terminated in accordance with this License, or unless otherwise stated in the applicable Purchase Order
    • (i) The subscription to a Product will renew for a Subscription Term equivalent in length to the then-expiring Subscription Term; and
    • (ii) the License Fees applicable to any subsequent Subscription Term shall be StorMagic’s then-current License Fees at the time of such renewal.
  3. Cancellation. Either party may elect to terminate a subscription to a Product at the end of the then-current Subscription Term by providing written notice in accordance with clause 13 of this License to [email protected] no less than thirty (30) days prior to the end of such Subscription Term.

11.4. No Refunds. Except where termination occurs under clause 11.2, no refunds or credits for License Fees or other fees or payments will be provided if the End User terminates (i) its Perpetual License; or (ii) its Subscription License prior to the end of a Subscription Term.

11.5. Service Data Portability and Deletion. Upon request by the End User made during the Term or within 30 days after the effective date of termination of this License, StorMagic will make the Service Data available to the End User for export or download as provided in the Documents. After such 30-day period, StorMagic will have no obligation to maintain or provide any Service Data and will thereafter delete or destroy all copies of Service Data in its systems or otherwise in its possession or control as provided in the Documents, unless legally prohibited.

11.6. On termination of this License for any reason:

  1. all rights granted to the End User under this License shall cease, and the End User shall no longer be entitled to access the Product or Services;
  2. the End User shall immediately destroy or return to StorMagic (at StorMagic’s option) all copies of the Product, License Keys and Confidential Information then in its possession, custody or control and, in the case of destruction, certify to StorMagic that it has done so;
  3. the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the License which existed at or before the date of termination or expiry shall not be affected; and
  4. any provision of this License that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this License shall remain in full force and effect.

12. CONFIDENTIALITY

12.1. The End User and StorMagic will each protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each party protects its own Confidential Information, but with no less than reasonable care.

12.2. Except as otherwise otherwise permitted under this License, the End User and StorMagic may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this License and shall disclose such Confidential Information

  1. only to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information;
  2. as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or
  3. as reasonably necessary to comply with any applicable law or regulation.

12.3. This Clause 12 shall not apply to any information which

  1. was already known to the receiving party at the time of disclosure by the disclosing party;
  2. was or is obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information
  3. was publicly known prior to the time of disclosure by the disclosing party,
  4. was or is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or
  5. becomes publicly known after such disclosure through no action or inaction of the receiving party in violation of this License.

12.4. Given the unique nature of Confidential Information, the parties agree that any violation or threatened violation by a party with respect to Confidential Information may cause irreparable injury to the other party. Therefore, the parties agree such violation or threatened violation shall entitle the other party to seek injunctive or other equitable relief in addition to all legal remedies.

13. COMMUNICATION BETWEEN STORMAGIC AND THE END USER

13.1. StorMagic may update the terms of this License at any time on notice to the End User in accordance with this clause 13. The End User’s continued use of the Product and Documents following the deemed receipt and service of the notice under Clause 13.3 shall constitute the End User’s acceptance to the terms of this License, as varied. If the End User does not wish to accept the terms of the License (as varied) the End User must immediately stop using and accessing the Product and Documents on the deemed receipt and service of the notice.

13.2. If Stormagic must contact the End User, it will do so by email to the contact address provided in the Purchase Order.

13.3. Note that any notice:

  1. given by Stormagic to the End User will be deemed received and properly served 24 hours after it is first posted on StorMagic’s website, or 24 hours after an email is sent; and
  2. given by the End User to Stormagic it will be deemed received and properly served 24 hours after an email is sent.

13.4. In proving the service of any notice, it will be sufficient to prove, in the case of posting on StorMagic’s website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

14. EVENTS OUTSIDE STORMAGIC’S CONTROL

14.1. Stormagic will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this License that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 14.2.

14.2. An Event Outside Our Control means any act or event beyond StorMagic’s reasonable control, including without limitation failure of public or private telecommunications networks.

14.3. If an Event Outside Our Control takes place that affects the performance of StorMagic’s obligations under this License:

  1. Stormagic’s obligations under this License will be suspended and the time for performance of Stormagic’s obligations will be extended for the duration of the Event Outside Our Control; and
  2. Stormagic will use its reasonable endeavours to find a solution by which its obligations under this License may be performed despite the Event Outside Our Control.

15. US Government End-Users. If you are a U.S. Government agency, you hereby acknowledge and agree that the Product constitutes “Commercial Computer Software” as defined in Section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 CFR 2.101. Therefore, in accordance with Section 12.212 of the FAR (48 CFR 12.212), and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (“DFARS”) (48 CFR 227.7202-1 and 227.7202-3), the use, duplication, and disclosure of the software and related Documents by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this License. If, for any reason, FAR 12.212 or DFARS 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, you hereby acknowledge that the Government’s right to use, duplicate, or disclose the software and related Documents are “Restricted Rights” as defined in 48 CFR Section 52.227-14(a) (May 2014) or DFARS 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is StorMagic, Inc., 525 North Tryon Street, Suite 1600, Charlotte, NC 28202.

16. Other Important Terms

16.1. This License and any document expressly referred to in it constitutes the entire agreement between StorMagic and the End User and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between StorMagic and the End User, whether written or oral, relating to its subject matter.

16.2. The End User acknowledges that in entering into this License it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this License or any document expressly referred to in it.

16.3. The End User agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this License or any document expressly referred to in it.

16.4. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.5. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

16.6. Each of the conditions of this License operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

16.7. This License, its subject matter and its formation (and any non-contractual disputes or claims) shall be determined by the location of the StorMagic providing entity, as detailed at Entities & Choice of Law – StorMagic . The parties irrevocably agree to the exclusive jurisdiction of the courts as detailed at Entities & Choice of Law – StorMagic.

Below are links relating to the StorMagic EULA detailing the following:

Entities and choice of law

Description and choice of products

Open source license agreements

Maintenance and support description

Brand usage guidelines