StorMagic End User License Agreement (EULA)
Please read the StorMagic EULA (End User License Agreement) carefully before installing or using StorMagic software. Subscription customers should refer to the StorMagic Subscription EULA. Installation and/or use of StorMagic software is conditioned upon and restricted to the terms and conditions of the Agreement. By installing or using StorMagic software, you agree to accept and be bound by this Agreement.
STORMAGIC LICENSE AGREEMENT
This is a legal agreement ("AGREEMENT") between the end-user customer ("you"), and the providing StorMagic entity (the applicable providing entity is hereinafter referred to as "STORMAGIC"). Your location of receipt of the StorMagic product (hereinafter "PRODUCT") and maintenance (hereinafter "MAINTENANCE") determines the providing entity as identified at http://stormagic.com/licensing/entities.
The contents of http://stormagic.com/licensing are deemed incorporated into this Agreement and shall be part of this Agreement.
BY INSTALLING AND/OR USING THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT.
This Agreement constitutes the entire agreement between you and STORMAGIC and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us whether written or oral, relating to its subject matter and excludes anything contained in any purchase order or any other document submitted by you.
Each party agrees that it 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 Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
1) PRODUCT LICENSES.
End User Licenses. The software in a software PRODUCT is made available by STORMAGIC under the license models identified at http://stormagic.com/licensing/products. Any experimental, technical preview or beta features delivered with such software will be identified and are licensed only for internal testing purposes. "Software" means a StorMagic proprietary and/or open source software program in object code form licensed hereunder. Notwithstanding anything set forth in this AGREEMENT your use of Open Source Software shall in all ways be exclusively governed by the open source license indicated as applicable to the code at http://stormagic.com/licensing/open-source. "Open Source Software" means those portions of the PRODUCT that are provided under an open source license (e.g. a version of a GNU General Public License, BSD or a license similar to those approved by the Open Source Initiative (http://opensource.org)).
Your license to software in a software PRODUCT will be activated by license keys that allow use of the PRODUCT in increments defined by the license model ("License Keys"). License Keys for other STORMAGIC products or other editions of the same PRODUCT may not be used to increase the allowable use for your edition of the PRODUCT.
- Partner Demo. If a software PRODUCT is provided as a "Not for Resale" (NFR) notwithstanding any term to the contrary in this AGREEMENT, your license permits use only if you are a current STORMAGIC authorized distributor or reseller, and then only for demonstration, test, evaluation, training and internal use purposes. Note that a Partner Demo PRODUCT may disable itself upon the expiration of the License Key. In no event may a Partner Demo PRODUCT be used beyond expiration. Details of the NFR entitlements are communicated separately to authorized distributors and resellers and may differ between different authorized entities.
- If a software PRODUCT is "Evaluation", or a "Trial License" notwithstanding any term to the contrary in this AGREEMENT, 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 MAINTENANCE, the Limited Warranty, or Infringement 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.
- Perpetual. If a software PRODUCT is purchased as a perpetual license your license permits the use of the software PRODUCT for the purpose as defined by the perpetual PRODUCT license purchased and the product and order process documentation. Any non-payment of license fees will be considered a breach and result in termination of this agreement as per section 9. TERMINATION AND SURVIVAL.
- If a software PRODUCT is purchased as a subscription license, the license permits the use of the software PRODUCT as defined by the subscription PRODUCT license purchased and the product and order process documentation. Any non-payment of license fees will be considered a breach and result in termination of this agreement as per section 9. TERMINATION AND SURVIVAL.
- Subscription Pay-as-you-go. If a software PRODUCT is purchased as a subscription pay-as-you-go license the license permits the use of the software PRODUCT as defined by the subscription pay-as-you-go PRODUCT license purchased and the product and order process documentation. Only approved STORMAGIC service provider partners may purchase the subscription pay-as-you-go license for use within the service provider's data centre for the purpose of delivering hosting services to third party organisations. This license is subject to the terms of the approved StorMagic Partnership Agreement. Any non-payment of license fees will be considered a breach and result in termination of this agreement as per section 9. TERMINATION AND SURVIVAL.
- Archive Copy. You may make one (1) copy of the software in a software or appliance PRODUCT in machine-readable form solely for back-up, provided that you reproduce all proprietary notices on the copy.
- A minimum 1 year of MAINTENANCE is required at the time of the PRODUCT purchase of a perpetual license and may need to be purchased separately. MAINTENANCE is included with subscription and subscription pay-as-you-go PRODUCT license for the term of the subscription. MAINTENANCE for a perpetual license may be extended by your purchase of additional maintenance years (the "MAINTENANCE Term").
- MAINTENANCE for the purchased PRODUCT begins upon delivery of the License Keys.
- During the initial or a renewal MAINTENANCE Term, STORMAGIC will make any updates for the PRODUCT covered by the plan available to you. An "update" shall mean a generally available release of the same edition of the software for the same PRODUCT, which STORMAGIC may make available from time to time.
- You acknowledge that 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 AGREEMENT shall give you any rights with respect to such new or different offerings or editions.
- The MAINTENANCE 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 http://stormagic.com/licensing/m-s.
- Any deliveries of Updates shall be electronic. The MAINTENANCE includes technical support, as detailed at http://stormagic.com/licensing/m-s. The offering you purchase determines your entitlement.
- In addition to your MAINTENANCE plan, you may also purchase STORMAGIC professional services as may be available. The provision of technical support or professional services is predicated upon the following responsibilities being fulfilled by you: (i) you agree to perform reasonable problem determination activities and to perform reasonable problem resolution activities as suggested by STORMAGIC; (ii) you are 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; (iii) you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware at your site and providing STORMAGIC with access to your facilities as required to operate the PRODUCT and permitting STORMAGIC to perform the service; and (iv) you are 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.
- STORMAGIC is not required to provide any technical support for problems arising out of: (i) your or any third party's alterations or additions to the PRODUCT, operating system or environment; (ii) STORMAGIC provided alterations or additions to the PRODUCT that do not address Errors or Defects; (iii) any functionality not defined in the user documentation published by STORMAGIC and included with the PRODUCT (hereinafter "Documentation"); (iv) use of a software PRODUCT on a processor or peripherals other than the processor and peripherals defined in the Documentation; (v) any PRODUCT that has reached End-of-Life; and (vi) any professional services deliverables from STORMAGIC, you or any third party. An "Error" is defined as a failure in the PRODUCT to materially conform to the functionality defined in the documentation. A "Defect" is defined as a failure in the PRODUCT to conform to the specifications in the Documentation.
- With respect to STORMAGIC 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 and absolute property of STORMAGIC, subject to a worldwide, non-exclusive license to you for internal use. Except for your payment obligations for provided PRODUCTS and services, non-performance of either party shall be excused to the extent performance is rendered impossible by force majeure, but only for so long as such condition exists.
- By using the PRODUCT, MAINTENANCE or any of the services, you agree to STORMAGIC collecting and using technical information about the devices you use the PRODUCT on and related software, hardware and peripherals to improve the PRODUCT and provide any MAINTENANCE and services.
3) DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS.
Except as expressly set forth in Section 12, you may not transfer the PRODUCT except to the extent such foregoing restriction is prohibited by applicable law. If you purchased or otherwise received replacement License Keys as part of a PRODUCT upgrade or otherwise and such replacement is a condition of the transaction, you agree to destroy the original License Keys and retain no copies after installation of the new License Keys and PRODUCT. You shall provide the serial numbers of the original License Keys and corresponding replacement License Keys to the reseller and, upon request, directly to STORMAGIC, for tracking purposes. In the event you make a transfer of the PRODUCT in the EU or EER, to the extent permitted by law and notwithstanding the terms of this AGREEMENT, you must uninstall the PRODUCT and License Keys, cease your use, transfer them to the transferee and retain no copies. You are responsible for ensuring that the transferee accepts the terms of this AGREEMENT. You must provide evidence that the conditions for a lawful transfer of the PRODUCT are met. All warranty, MAINTENANCE and infringement indemnification rights will terminate automatically upon such transfer and will not be available to the transferee. You must comply with applicable export laws with respect to such a transfer. You may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on or copy the PRODUCT, except as expressly licensed in this AGREEMENT or to the extent such foregoing restriction is expressly prohibited by applicable law. You may not remove any proprietary notices, labels, or marks on the PRODUCT. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any portions of the PRODUCT that are Open Source Software. To the extent permitted by applicable law, you agree to allow STORMAGIC to audit your compliance with the terms of this AGREEMENT upon prior written notice and during normal business hours, but no more than once per year. Any audit shall not unreasonably interfere with your business activities. You will reasonably cooperate with STORMAGIC and the auditor and will, without prejudice to other rights of STORMAGIC, address any non-compliance identified by the audit, including, but not limited to, promptly paying any fees owed. If the audit discloses an underpayment of ten percent (10%) or more of fees owed for the period audited or other material breach of this AGREEMENT, you agree to also reimburse STORMAGIC for the reasonable audit expenses. Note that a PRODUCT may be provided with identified experimental features which are not part of the PRODUCT and which are not covered by MAINTENANCE and the Limited Warranty. Such features are offered AS IS and may never become part of the PRODUCT or any STORMAGIC commercial product. StorMagic makes no representations or certifications with respect to experimental features.
4) ALL RIGHTS IN THE PRODUCT NOT EXPRESSLY GRANTED ARE RESERVED BY STORMAGIC OR ITS LICENSORS.
STORMAGIC and/or its licensors own and retain all title and ownership of all intellectual property rights in and to the PRODUCT, including any adaptations, modifications, translations, derivative works or copies, and any relating to the design, manufacture, or operation of the same.
5) INFRINGEMENT INDEMNIFICATION.
In the event of any claim, suit, or proceeding brought against you based on an allegation that a PRODUCT, experimental features or professional services deliverable hereunder (excluding Open Source Software unless noted at http://stormagic.com/licensing/products infringes upon any patent, copyright, intellectual property right or trade secret of any third party ("Infringement Claim"), STORMAGIC shall defend, or at its option, settle, such Infringement Claim, and shall pay all costs (including reasonable attorney's fees) associated with the defence of such Infringement Claim, and all damages finally awarded or settlements undertaken by STORMAGIC in resolution of such Infringement Claim, provided you: (i) promptly notify STORMAGIC in writing of your notification or discovery of an Infringement Claim such that STORMAGIC is not prejudiced by any delay in such notification or any statement made by you; (ii) give STORMAGIC sole control over the defence or settlement of the Infringement Claim; and (iii) provide reasonable assistance in the defence of the same. Following notice of an Infringement Claim, or if STORMAGIC believes such a claim is likely, STORMAGIC may at its sole expense and option: (i) procure for you the right to continue to use the alleged infringing PRODUCT, experimental feature or professional services deliverable; (ii) replace or modify the PRODUCT, experimental feature or professional services deliverable to make it non-infringing; or (iii) accept return of the PRODUCT, experimental feature or professional services deliverable and, for the PRODUCT, provide you with a prorated refund for the PRODUCT, using a three (3) year straight line depreciation basis for the PRODUCT when purchased as a perpetual license, or, 1/3rd of the subscription or subscription pay-as-you-go fees up to a maximum of 1 year, or, for the professional services deliverable, refund payments made for the deliverable. STORMAGIC assumes no liability, and shall have no liability, for any Infringement Claims or allegations of infringement based on: (i) your use of any PRODUCT, experimental feature or professional services deliverable after notice that you should cease use of such PRODUCT, experimental feature or professional services deliverable due to an Infringement Claim; (ii) any modification of the PRODUCT, experimental feature or professional services deliverable by you or at your direction; (iii) your combination of the PRODUCT, experimental feature or professional services deliverable with non-STORMAGIC hardware, software, services, data or other content or materials if such Infringement Claim would have been avoided by the use of the PRODUCT, experimental feature or professional services deliverable alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM OR ALLEGATION OF INFRINGEMENT.
6) LIMITED WARRANTY AND DISCLAIMER.
STORMAGIC warrants that for a period of ninety (90) days from delivery of the License Keys, the software PRODUCT will perform substantially in accordance with the PRODUCT's documentation published by STORMAGIC and included with the PRODUCT. STORMAGIC and its licensors' and suppliers' ("SUPPLIERS'") entire liability and your exclusive remedy under this software warranty (which is subject to your return of the PRODUCT to STORMAGIC or an authorized reseller) will be, at the sole option of STORMAGIC and subject to applicable law, to replace the PRODUCT or to refund the purchase price and terminate your license to any software on the PRODUCT. STORMAGIC will provide MAINTENANCE (including technical support and professional services if purchased) in a professional and workmanlike manner, but STORMAGIC cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time. StorMagic does not warrant in any form the results or achievements of the PRODUCT, technical support, professional services or related deliverables. For technical support or professional services, STORMAGIC and its SUPPLIERS' entire liability and your exclusive remedy under this Agreement and warranty is re-performance of the services or, if re-performance is not possible or conforming, refund of amounts paid for the non-conforming services. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY, STORMAGIC AND ITS SUPPLIERS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND STORMAGIC AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO THE PRODUCT, ANY EXPERIMENTAL FEATURES, MAINTENANCE AND ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER, ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT AND MAINTENANCE ARE NOT DESIGNED, MANUFACTURED, DELIVERED OR INTENDED FOR ANY USE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME RESPONSIBILITY FOR THEIR SELECTION TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THEIR INSTALLATION, USE, AND RESULTS OBTAINED THEREFROM.
7) EXPORT RESTRICTION.
You agree that you will not export, re-export, or import the PRODUCT, MAINTENANCE or any other software or service delivered hereunder in any form without the appropriate government licenses. You understand that under no circumstances may the PRODUCT, MAINTENANCE or any other software or service delivered hereunder be exported to any country subject to U.S. or U.K. embargo or to U.S. or U.K. designated denied persons or prohibited entities or U.S. specially designated nationals.
8) LIMITATION OF LIABILITY.
EXCEPT FOR STORMAGIC INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN SECTION 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER STORMAGIC NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE PRODUCT, EXPERIMENTAL FEATURES, MAINTENANCE OR ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY PRODUCTS OR HARDWARE, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF ANY OR ALL OF THE SAME. THIS LIMITATION WILL APPLY EVEN IF STORMAGIC, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT FOR STORMAGIC INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN SECTION 5 (UNLESS NOTED AT http://stormagic.com/licensing/products, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF STORMAGIC, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE PRODUCT, EXPERIMENTAL FEATURES, MAINTENANCE TERM, PROFESSIONAL SERVICES DELIVERABLE OR ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER AT ISSUE. YOU ACKNOWLEDGE THAT THE PRODUCT AND MAINTENANCE FEES REFLECT THESE ALLOCATIONS OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this AGREEMENT, the term "AFFILIATE" shall mean any entity that controls, is under common control with, or is controlled by STORMAGIC, where "control" means the ownership, direct or indirect, of a majority of STORMAGIC' stock or other interest entitled allowing the owner to direct the affairs of STORMAGIC. AFFILIATES, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT.
9) TERMINATION AND SURVIVAL.
This AGREEMENT is effective until terminated save that any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. You may terminate this AGREEMENT at any time by removing the software of your software PRODUCT from your computers and destroying all copies, and by removing the software of your appliance PRODUCT from the hardware, and then providing written notice to STORMAGIC with the serial numbers of your License Keys. STORMAGIC may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the software in a software or appliance PRODUCT or the Documentation or otherwise failing to comply with the license grant or restrictions of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to STORMAGIC all other legal remedies. You agree and acknowledge that your material breach of this AGREEMENT shall cause STORMAGIC irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, STORMAGIC shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this Agreement, the PRODUCT licenses granted hereunder will terminate and you must immediately destroy the software in a software or appliance PRODUCT and the Documentation, and all backup copies thereof. Any termination of professional services is subject to the applicable scope definition, and you shall pay for services provided prior to the termination. All purchases are final with no right of return, and neither STORMAGIC nor any reseller or distributor will be obligated to pay, nor will you be due, any refund of amounts paid by you, other than under the Limited Warranty or Infringement Indemnification terms of this Agreement. Those provisions of this Agreement, which are intended by the parties to survive shall survive termination of this Agreement, including without limitation, the Limitation of Liability terms.
10) U.S. GOVERNMENT END-USERS.
If you are a U.S. Government agency, you hereby acknowledge and agree that the software 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 Documentation 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 standard commercial license AGREEMENT. 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 Documentation 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., 255 Primera Boulevard, Suite 160, Lake Mary, Florida 32746.
11) AUTHORIZED DISTRIBUTORS AND RESELLERS.
STORMAGIC authorized distributors and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on STORMAGIC.
12) CHOICE OF LAW AND VENUE.
The location of your providing entity will determine the choice of law and venue as identified at http://stormagic.com/licensing/entities ("applicable law"). If any provision of this AGREEMENT is invalid or unenforceable under applicable law, it shall be to that extent deemed omitted or varied to the extent that it would be enforceable and the remaining provisions including any varied provisions will continue in full force and effect. To the extent a provision is deemed omitted or varied, the parties agree to comply with the remaining or varied terms of this AGREEMENT in a manner consistent with the original intent of the AGREEMENT. No waiver is effective unless signed by the party to be bound.
13) ASSIGNMENT AND SUBCONTRACTING.
Neither party hereto may assign this AGREEMENT, or any rights or obligations under it except as permitted by law or as set forth below, without the prior written consent of the other party, unless assigned to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of the party's assets. You shall provide notice to STORMAGIC upon completion of any permitted assignment. In addition, you may assign this AGREEMENT to a majority-owned affiliate, and STORMAGIC may assign this AGREEMENT, or any rights or obligations under it to any AFFILIATE or any third party acquiring or otherwise assuming part of the business of STORMAGIC or any of its AFFILIATES. Subject to this restriction, this AGREEMENT will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. STORMAGIC may use subcontractors to provide services to you under this AGREEMENT, but STORMAGIC shall remain responsible to you for the performance of the services.
This AGREEMENT does not grant you the right to use any STORMAGIC trade or service mark.
15) HOW TO CONTACT STORMAGIC.
Should you have any questions concerning this AGREEMENT or want to contact STORMAGIC for any reason, write to STORMAGIC Customer Service at the address identified at http://stormagic.com/company/contact.
END USER LICENSE AGREEMENT
This end user licence agreement (“EULA”) is a legal agreement between StorMagic Limited, a company incorporated in England and Wales with company registered number 05706971 and registered office address at Unit 4 Eastgate Office Centre, Eastgate Road, Bristol, England, BS5 6XX (“StorMagic”) and the legal person or entity accepting the terms of this EULA (and, as used herein, the terms “Subscriber,” “you” and “your” refer to such legal person or entity).
You agree to the terms of this EULA on the earlier of (a) indicating your acceptance of an online version of this EULA or (b) using the Subscription Service as described herein. If you are entering into this EULA on behalf of a company or other legal entity (e.g., your employer, principal or client), you represent that you are authorised to do so. If you are not so authorised, or if you disagree with any of the terms of this EULA, you must not use the Subscription Service provided in connection with this EULA.
The definitions and rules of interpretation in this clause apply in this EULA.
The agreement entered into by and between the Subscriber and the applicable authorised Reseller pertaining to the resale and/or use of the Subscription Service.
The authorised reseller and/or distributor of StorMagic’s Subscription Service from which the Subscriber has agreed to purchase the Subscription Service pursuant to the terms of the Subscription Agreement and this EULA.
A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Means all information (whether in oral, written or electronic form) relating to a party’s business which may reasonably be considered to be confidential in nature including information relating to that party’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers. All information relating to the Subscription Service (including the Software), any other technical or operational specifications or data relating to the Software shall be part of StorMagic’s Confidential Information.
Intellectual Property Rights:
Patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Means a serial number provided by StorMagic that enables the Subscriber to activate and use the Subscription Service.
The platinum support service more particularly described at https://stormagic.com/licensing/m-s/.
The proprietary software of StorMagic made available by StorMagic for use by the Subscriber pursuant to the Subscription Agreement and this EULA, including any other releases, versions or updates or upgrades as made available by StorMagic from time to time during the Subscription Period.
The amount of virtual storage capacity available on the Subscriber’s Systems, facilitated by the use of the Subscription Service.
Has the meaning given in clause 12.1 of this EULA.
The use of the Software on a subscription basis together with the associated Platinum Support made available to the Subscriber by StorMagic pursuant to the Subscription Agreement and this EULA.
The Subscriber’s hardware, applications, data, interfaces, tools, software (excluding the Software).
Any technical requirements notified to Subscriber relating to the requirements of the Subscription Service, the Storage Capacity, the Software, the Platinum Support or the Subscriber’s Systems.
2) SUBSCRIPTION SERVICE
2.1) In consideration of the Subscriber agreeing to abide by the terms of this EULA, StorMagic grants to the Subscriber a non-exclusive, non-transferable right to access and use the Subscription Service on the Subscriber’s Systems for the Subscription Period, subject to the terms of this EULA.
2.2) Except as expressly permitted under this EULA or by law, the Subscriber acknowledges and agrees that it:
- shall only use the Subscription Service for its own internal business purposes;
- shall not remove any Intellectual Property Rights notice or other notices relating to the Subscription Service, nor shall it violate or circumvent or bypass any technological restrictions within the Subscription Service;
- shall only be permitted to access the Subscription Service to facilitate the creation of the purchased Storage Capacity, and shall not be permitted to circumvent or bypass or circumvent any technological restrictions relating to the Storage Capacity;
- shall be responsible for ensuring its Systems and processes satisfy any Technical Prerequisites, are in good working order, and are compatible for use with the Subscription Service and the Platinum Support;
- acknowledges that StorMagic shall not be obliged to provide the Subscriber with any assistance extracting or recovering data on any of its Systems, whether during or after the term of this EULA;
- shall comply with the terms of the Subscriber Agreement.
2.3) The Subscriber may not use the Subscription Service other than as specified in this EULA without the prior written consent of StorMagic, and the Subscriber acknowledges that additional fees may be payable on any change of use approved by StorMagic.
2.4) StorMagic may suspend the Subscriber’s access to the Software and/or cease providing the Platinum Support if StorMagic reasonably suspects that there has been any misuse of the Subscription Service, or a material breach of this EULA.
3) LICENSE KEYS
3.1) In consideration of the Subscriber agreeing to abide by the terms of this EULA, StorMagic shall make available to the Subscriber a Licence Key to enable the Subscriber to activate the Subscription Service. The Subscriber acknowledges that the Licence Key is for the Subscriber’s sole use for the purpose of activating the Subscription Service.
3.2) The Subscriber shall:
- only permit Licence Keys to be used to activate the Subscription Service on its Systems;
- keep confidential, and shall not share with any third parties, details of Licence Keys; and
- report any unauthorised disclosure, access or use of a Licence Keys to StorMagic as soon as reasonably practicable upon becoming aware of the same.
4) STORAGE CAPACITY
4.1) The Subscriber acknowledges and agrees that the Subscription Service shall only be used to facilitate the creation and maintenance of the Storage Capacity purchased by the Subscriber pursuant to the Subscription Agreement and this EULA.
4.2) The Subscriber may increase the Storage Capacity at any time during the Subscription Period by purchasing additional Storage Capacity. The Subscriber acknowledges and agrees that once additional Storage Capacity is purchased, the Subscriber shall not subsequently be able to reduce the amount of Storage Capacity available.
4.3) The Subscriber acknowledges and agrees that the amount of Storage Capacity shall be limited by any restrictions contained in the Subscriber’s Systems, including the physical capacity of such Systems.
5) PLATINUM SUPPORT
5.1) In consideration of the Subscriber agreeing to abide by the terms of this EULA, StorMagic shall provide the Subscriber with the Platinum Support.
5.2) StorMagic shall provide the Platinum Support with reasonable care and skill, and shall use its reasonable endeavours to meet any time, including target response times as set out at https://stormagic.com/licensing/m-s/ quoted for completion of any part of the Platinum Support.
5.3) The provision of the Platinum Support does not imply that StorMagic shall be successful in correcting errors or faults or that StorMagic shall be able to assist the Subscriber in achieving any results from the Subscription Service which are not technically feasible.
5.4) StorMagic is not obliged to provide Platinum Support in respect any error or fault resulting from, or contributed to by, any of the following:
- any breach by the Subscriber of this EULA or the Subscriber’s negligent act or omission; or
- any modification, rectification, repair, maintenance or addition to the Subscription Service made by any person other than StorMagic (or any person authorised by StorMagic in writing).
6) SUBCONTRACTING AND ASSIGNMENT
6.1) StorMagic may at any time assign, subcontract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this EULA, provided that it gives prior written notice to the Subscriber.
6.2) Subject to clause 6.3, the Subscriber shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this EULA without the prior written consent of StorMagic (such consent not to be unreasonably withheld or delayed).
6.3) The Subscriber may, after having given prior written notice to StorMagic, assign its rights under this EULA for the purpose of a bona fide and solvent amalgamation, reconstruction or merger, or to any person to which it transfers its business, provided that the assignee undertakes in writing to StorMagic to be bound by the Subscriber’s obligations under this EULA.
7.1) Subject to clause 7.2, the Subscriber shall maintain the confidentiality of StorMagic’s Confidential Information and shall not without the prior written consent of StorMagic, disclose, copy or modify the Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this EULA.
7.2) The Subscriber may disclose StorMagic’s Confidential Information to its officers, employees, representatives, contractors or advisers who need to know such Confidential Information provided that it ensures that its employees, officers, representatives, contractors or advisers to whom it discloses StorMagic’s Confidential Information comply with this clause.
8.1) Each party shall comply with all applicable laws and shall maintain such authorisations and approvals as required from time to time to perform their obligations under or in connection with this EULA.
8.2) Without prejudice to the generality of clause 8.1, the parties shall comply with all applicable laws, rules, and regulations governing export of goods and information that apply to the Subscription Service, and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Subscription Service to any country for which an export licence or other approval is required, without first obtaining such licence or other approval.
8.3) The Subscriber shall be solely responsible for ensuring its access, importation or use of the Subscription Service in or into any part of the world complies with all export laws.
8.4) The Subscriber agrees that they will not export, re-export, or import the Software, Platinum Support or any other software or service delivered hereunder in any form without the appropriate government licenses. The Subscriber understands that under no circumstances may the Software, Platinum Support or any other software or service delivered hereunder be exported to any country subject to U.S. or U.K. embargo or to U.S. or U.K. designated denied persons or prohibited entities or U.S. specially designated nationals.
9.1) The Subscriber warrants that it has full capacity and authority and all necessary consents to enter into this EULA and that this EULA is executed by its duly authorised representative and represents a binding commitment on it.
9.2) StorMagic warrants that the Subscription Service:
- will be provided with reasonable care and skill; and
- that the Subscription Service will materially comply with any relevant information published on the StorMagic website describing the main features of the Subscription Service.
9.3) Other than as expressly set out herein, StorMagic does not warrant that the Subscription Service will be uninterrupted or error-free.
9.4) The Subscriber acknowledges that any Open-Source Software incorporated in the Software provided by StorMagic is provided solely on the applicable terms and conditions of the relevant Open-Source Software licensor and agrees that StorMagic shall have no liability in respect of such Open-Source Software.
10) LIMITS OF LIABILITY
10.1) The extent of StorMagic’s liability under or in connection with this EULA (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or arising under any indemnity) shall be as set out in this clause 10.
10.2) Subject to clauses 10.3, 10.4 and 10.5, StorMagic’s total aggregate liability howsoever arising under or in connection with this EULA shall be limited to the amount actually paid by the Subscriber under this EULA in the 12 months preceding the date on which the claim arose.
10.3) Subject to clause 10.5, StorMagic shall not be liable for consequential, indirect or special losses.
10.4) Subject to clause 10.5, StorMagic shall not be liable for any of the following (whether direct or indirect) loss of profit; loss or corruption of data; loss or corruption of software or systems; loss or damage to equipment (including any of the Subscriber’s Systems); loss of use; loss of production; loss of contract; loss of opportunity; loss of savings, discount or rebate (whether actual or anticipated); and/or harm to reputation or loss of goodwill.
10.5) Notwithstanding any other provision of this EULA, StorMagic’s liability shall not be limited in any way in respect of the following:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- any other losses which cannot be excluded or limited by applicable law.
10.6) Other than as expressly set out in this EULA, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality and/or fitness for any particular purpose are excluded to the fullest extent allowed by applicable law.
11) INTELLECTUAL PROPERTY RIGHTS
11.1) The Intellectual Proprietary Rights and all other proprietary rights in the Subscription Service (including the Software), materials developed, provided or made available by or on behalf of StorMagic under this EULA shall remain vested in and be the absolute property of StorMagic, its third party licensors, or both (as applicable). The Subscriber shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Subscription Service (including the Software).
11.2) The Subscriber grants StorMagic a non-exclusive, non-transferable and royalty-free licence to use the materials, data, software and Intellectual Property Rights provided or made accessible to StorMagic or anyone acting on its behalf to the extent necessary to enable StorMagic to provide the Subscription Service and otherwise perform its obligations under this EULA.
11.3) StorMagic undertakes at its own expense to defend the Subscriber or, at its option, settle any claim or action brought against the Subscriber alleging that the use of the Subscription Service (or any part thereof) in accordance with the terms of this EULA infringes the UK Intellectual Property Rights of a third party and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Subscriber as a result of or in connection with any such claim. For the avoidance of doubt, this clause shall not apply where the claim in question is attributable to use of the Subscription Service by the Subscriber other than in accordance with the terms of this EULA.
11.4) If any third party makes a claim, or notifies an intention to make a claim against the Subscriber, StorMagic's obligations under clause 11.3 are conditional on the Subscriber:
- as soon as reasonably practicable, giving written notice of the claim to StorMagic, specifying the nature of the claim in reasonable detail;
- not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of StorMagic;
- giving StorMagic and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Subscriber for the purpose of assessing the claim; and
- taking such action as StorMagic may reasonably request to avoid, dispute, compromise or defend the claim.
11.5) If any claim is made, or in StorMagic's reasonable opinion is likely to be made, against the Subscriber, StorMagic may at its sole option and expense:
- procure for the Subscriber the right to continue to use the Subscription Service in accordance with the terms of this EULA;
- modify the Subscription Service so that it ceases to be infringing; or
- terminate this EULA immediately by notice in writing to the Subscriber.
11.6) This clause 11 constitutes the Subscriber's exclusive remedy and StorMagic's only liability in respect of claims.
12) SUBSCRIPTION PERIOD, RENEWALS AND TERMINATION
12.1) Unless otherwise agreed by the parties in writing, this EULA shall come into force on the acceptance by the Subscriber of this EULA and shall continue in force until the earlier of:
- the expiry of any specified subscription period in the Subscription Agreement or the expiry or termination of the Subscription Agreement itself for any reason; or
- the termination of this EULA by either party in accordance with the terms of this EULA (the “Subscription Period”).
12.2) Without affecting any other right or remedy available to it, StorMagic may terminate this EULA with immediate effect upon the expiration or termination of the agreement between StorMagic and the Reseller in respect of the resale or provisioning of the Subscription Service.
12.3) Without affecting any other right or remedy available to it, either party may terminate this EULA with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any other term of this EULA which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
- the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
12.4) On termination of this EULA for any reason:
- all rights granted to the Subscriber under this EULA shall cease, and the Subscriber shall no longer be entitled to access the Subscription Service or the Platinum Support;
- the Subscriber shall immediately destroy or return to StorMagic (at StorMagic's option) all copies of the Software, Licence 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;
- 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 agreement which existed at or before the date of termination or expiry shall not be affected; and
- any provision of this EULA that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this EULA shall remain in full force and effect.
13) DATA PROTECTION
13.1) Both parties will comply with all applicable privacy and data protection law. The parties do not intend that StorMagic will process any personal data on the Subscriber’s behalf in the provision of the Subscription Service under this EULA.
14.1) Any notice or other communication given by a party under this EULA shall be:
- in writing and in English and signed by, or on behalf of, the party giving it; and
- sent to the relevant party at the address at the top of this EULA in the case of StorMagic, and at the address provided by the Subscriber as part of the creation of its subscription.
14.2) Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day in the country of receipt after posting or at the time recorded by the delivery service; or
- if sent by email, at 9.00 am on the next Business Day in the country of receipt after transmission.
14.3) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.1) No failure or delay by a party to exercise any right or remedy provided under this EULA or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.2) This EULA 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 EULA, whether in writing or oral. The Subscriber agrees that, in entering into this EULA, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this EULA.
15.3) Each party shall pay all sums that it owes to the other party under this EULA without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
15.4) No variation of this EULA shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5) If any provision or part-provision of this EULA 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 EULA.
15.6) A person who is not a party to this EULA shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
15.7) Nothing in this EULA 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 any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.8) Neither party shall be in breach of this EULA nor liable for delay in performing, or failure to perform, any of its obligations under this EULA if such delay or failure result from events, circumstances or causes beyond its reasonable control.
15.9) This EULA 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 law of England, 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 EULA or its subject matter or formation (including non-contractual disputes or claims).