End user agreement for Replay AppImage
BY INSTALLING OR USING THE SOFTWARE (AS DEFINED BELOW), OR CLICKING THE “I ACCEPT” BOX, YOU ARE AGREEING ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE (“COMPANY”) THAT COMPANY WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS LICENSE AGREEMENT (“LICENSE”) AND THAT YOU HAVE THE AUTHORITY TO BIND COMPANY. IF COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE SOFTWARE AND DO NOT SELECT THE “I ACCEPT” BOX. COMPANY HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE, THE SOFTWARE UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY THIS LICENSE.1. In this License: “Software” means the commercially released, unmodified version of the AppAssure computer program, in machine-readable form only, that was selected for purchase in the ordering process, together with such subsequent corrections and updates as may be supplied by AppAssure Software, Inc. (“AppAssure”); “Documentation” means user manuals, handbooks, pocket guides and all other related materials in print or electronic form supplied by AppAssure; “Product” means the Software together with the Documentation; “Configuration” means the computer hardware upon which the Software is operated together with the number of users and usage patterns which are the basis for the fees covered by this License.2. This License provides for a “Per Mailbox User”, “Server” or “Site” license, as specified in purchase and payment documentation, which may include online forms or signed quotations (“Purchase Documents”). A “Per Mailbox User” license is for Company's use on a set of Microsoft® Exchange systems that have “up to” the number of mailbox users that are licensed in aggregate. A “Server” license is for Company's use on a licensed Windows® server. A “Site” license is for Company's use on a specified number of Windows servers, with a specified number of mailboxes, at a particular Company physical location. A Per Mailbox User, Server or Site license is either subscription-based, e.g., annual (each, a “Subscription”) or perpetual, as specified in the Purchase Documents. 3. THIS LICENSE INCLUDES AN INITIAL “TEST DRIVE” PERIOD OF THIRTY DAYS DURING WHICH THE LICENSEE MAY TEST THE PRODUCT ON A VARIETY OF CONFIGURATIONS. THE COMPANY WILL BE AUTOMATICALLY NOTIFIED BY THE PRODUCT OF TIME REMAINING IN THE “TEST DRIVE” PERIOD. IF THAT TIME IS LESS THAN THIRTY DAYS FROM INITIAL PRODUCT INSTALLATION, THE COMPANY MAY OBTAIN A SOFTWARE LICENSE KEY FROM APPASSURE FOR THE BALANCE OF THE “TEST DRIVE” BY CALLING +1-703-547-8686. UPON CONCLUSION OF THE “TEST DRIVE” AND PAYMENT OF AN INVOICE FOR THE BALANCE OF THE LICENSE FEES (OR THE FEES THEN-DUE IF A SUBSCRIPTION), APPASSURE WILL PROVIDE LICENSEE WITH A SOFTWARE LICENSE KEY FOR CONTINUED USE IN ACCORDANCE WITH THE TERMS OF THIS LICENSE AND APPLICABLE PAYMENT DOCUMENTATION. 4. THE PRODUCT IS LICENSED, NOT SOLD. Company acknowledges that no title to Product is transferred by this License, and that Company may retain possession of Product only by complying with the terms herein. Company shall not remove or alter any copyright, trademark, trade secret or proprietary notice in the Product. Company may not transfer its rights or obligations under this License without the prior written consent of AppAssure. As a condition to any approved transfer of this License, the Company shall not retain any copies of the Product, including Documentation, and the transferee shall accept all applicable obligations under this License. Any attempted assignment or transfer of this License or the rights hereunder in violation of this provision shall be void and of no effect. 5. AppAssure, in consideration of payment in accordance with this License and the Purchase Documents applicable to this License, and subject to the terms herein, hereby grants Company a nonexclusive right to use the Software solely for Company's own internal business purposes. The Software may be used temporarily on a backup computer during a malfunction of the computer for which it is licensed. The Software may only be copied by Company to the extent necessary for backup purposes to allow use of the Software as authorized herein. Company agrees to include AppAssure's and its licensors' copyright, trademark, trade secret and other proprietary notices on all copies of the Software. Documentation may not be copied by Company. Company may use the Software only in accordance with the Configuration identified on applicable Purchase Documents and its status as a “Per Mailbox User,” “Server” or “Site” licensee. In the event Company has purchased a Subscription, the term of the Subscription, and Company's right to use the Software as provided in this License, shall be limited to the Subscription Period (as defined in Section 24 below). AppAssure, together with its suppliers and licensors, reserves all rights not expressly granted in this License. 6. After the Test Drive Period, a Per Mailbox User, Server or Site licensee may operate the Software on a Configuration larger than the Configuration identified in the Purchase Documents to which the License applies by agreeing to pay an invoice, under the terms and prices current at the time of the change, for the incremental addition to the license fees corresponding to the difference between the fees already paid and the fees for the larger Configuration. Upon payment of the invoice, AppAssure will provide a Per Mailbox User, Server or Site licensee with an appropriate extension of the software key necessary for continued use of the Software. 7. Company acknowledges that the Product contains valuable copyright, trade secret and other proprietary rights and information and remains the valuable property of AppAssure and its licensors. Company agrees not to disclose or make available such information to any person for any purpose other than as is necessary for Company's use as authorized by this License. Company shall take all reasonable steps to assure that only authorized persons have access to the Product and related materials and to assure that persons authorized to have access do not further disclose this information except in accordance with this License. Company shall not copy (except as expressly permitted in this License), alter, merge, adapt, modify, create derivative works, adapt, translate or, except and only to the extent that applicable law expressly permits such activity, reverse engineer, reverse assemble or reverse compile the Software. Except as otherwise expressly agreed by AppAssure and Company in writing, Company shall not, directly or indirectly, sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Software for any purpose or use the Software on behalf of any third parties, including timesharing or service bureau purposes. 8. If within the Test Drive Period the Product does not substantially perform as described in the Documentation and AppAssure is unable to furnish a cure for the defect, Company may return the Product to AppAssure, if purchased directly from AppAssure, or to the authorized distributor from which it was purchased, for a full refund of payment actually made. Company shall not otherwise be entitled to any refund of amounts paid to AppAssure. 9. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL APPASSURE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS LICENSE OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL APPASSURE'S LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE EXCEED THE AMOUNT THAT COMPANY PAID TO APPASSURE UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. 10. If specified in the applicable Purchase Documents, AppAssure agrees to provide Company with maintenance services. Such maintenance services may include: a) new releases of Software as they are made available, together with applicable Documentation, with or without express carrier shipping charges; b) fax support; c) telephone support between the hours of 8:00 a.m. and 8:00 p.m. Eastern Standard Time, excluding standard holidays, responding in a timely manner upon receipt of Company's first call; d) premium 24-hour support; and e) such other maintenance services as may from time to time be made available by AppAssure in its sole discretion. 11. Where AppAssure agrees to provide maintenance services, Company understands and agrees that AppAssure cannot be responsible for maintaining the Software if the Software is used or operated in a manner or in an environment not consistent with its intended purpose or is modified or repaired in any manner which adversely affects its operation or reliability. Furthermore, Company understands and agrees that AppAssure has no obligation to maintain, support or correct any Software used in a Configuration not authorized by this License. 12. Where AppAssure agrees to provide maintenance services, and if AppAssure, in its sole discretion, releases a revision of the Software within the maintenance period covered by the applicable Purchase Documents, after 60 days from shipment of the new release to the Company, AppAssure's obligations under this License shall apply to the “new” release.13. Where AppAssure agrees to provide maintenance services, and Company encounters a problem with the Software, Company agrees to advise AppAssure of the precise nature of the suspected error, malfunction or defect, either in writing by a Software Performance Report or by telephone. Company will provide AppAssure with whatever listings, printouts, screen copies (if available) or additional data or on-site support which AppAssure may request as necessary or helpful to reproduce the environment in which such licensed Software operated and the suspected error. If AppAssure determines that there was no malfunction or defect in the licensed Software, Company shall pay for all time and materials spent by AppAssure attempting to determine and correct the reported problem at AppAssure's then-current rates. Company will be billed separately for shipping, documentation and media required to provide program corrections. APPASSURE DOES NOT GUARANTEE THAT ITS SERVICE EFFORTS WILL BE SUCCESSFUL IN ALL CASES, NOR DOES APPASSURE REPRESENT OR WARRANT THAT ALL ERRORS, MALFUNCTIONS OR DEFECTS WILL BE CORRECTED. 14. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCT AS PROVIDED BY APPASSURE IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT AND SYSTEMS INTEGRATION. APPASSURE DOES NOT WARRANT OR GUARANTEE THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, OR WHERE THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO COMPANY. 15. The warranties, limitations of liabilities and remedies set forth above are exclusive and in lieu of all others, oral or written, expressed or implied. The limitations set forth in this License shall apply notwithstanding any failure of essential purpose of this License or any limited remedy hereunder. No AppAssure dealer, agent, employee, or distributor is authorized to make any modification or addition to this License. 16. Where AppAssure agrees to provide maintenance services, unless AppAssure or Company provides the other party with written notice of cancellation at least 60 days prior to the anniversary date of the applicable Purchase Documents, AppAssure will invoice Company for a one-year extension of maintenance in advance of the anniversary date and at a rate based upon the then current maintenance pricing for the Software. Company understands and agrees that payment for extension of the maintenance services is not contingent upon the receipt of any material goods from AppAssure. AppAssure shall be held harmless for any claim whatsoever arising out of discontinuance of maintenance services of Software by AppAssure due to nonpayment by Company or failure of Company to obtain a software key extension where applicable. (This section shall not apply to Subscriptions, which include those maintenance services specified in the Purchase Documents.) 17. If Company wishes to extend maintenance services, which have been terminated by the Company, or terminated by AppAssure for nonpayment, Company may do so by written notice to AppAssure and payment in advance of a reinstatement fee, separate from and in addition to the maintenance fees. (This section shall not apply to Subscriptions, which include those maintenance services specified in the Purchase Documents.) 18. Without prejudice to any other rights, AppAssure may terminate Company's rights to use the Product and/or this License if Company fails to comply with this License. In the event of a Product return or a License termination or expiration, all rights to use the Software shall terminate immediately and all Software and Documentation must be returned to AppAssure with a letter from an authorized officer of Company certifying that all other copies of the Product have been destroyed. Sections 4, 7, 9, 14, 15, 18, 20, 21, 22, 26, 28, 29 and 30 shall survive termination of this License. 19. AppAssure will defend, at its expense, any action brought against Company based on a claim that the unaltered Product infringes a United States copyright or United States patent and will pay resulting out-of-pocket costs, damages and attorney's fees finally awarded against Company in such action attributable to such claim provided AppAssure is given prompt written notice of such claim and sole authority to defend it. If such a claim is asserted, Company agrees to permit AppAssure, at its option and expense, to produce for Company the continuation of the rights granted to it under this License or to replace or modify the Product so that it is non-infringing. AppAssure will not be liable and will not defend Company if the alleged infringement is based on: (a) the combination, operation or use of the Product with data or software not upplied by AppAssure or hardware other than the Configuration identified; (b) modifications to the Products made by anyone other than AppAssure or its agents; or (c) Company's failure to use corrections or enhancements that are furnished by AppAssure, where such correction or enhancement would have avoided the infringement. 20. Company agrees it will not export, directly or indirectly, the Software and/or the Documentation, in whole or part, to any country or destination where such export is prohibited or restricted by the United States government, without the prior written consent of AppAssure and in compliance with all applicable law, including the Export Administration Regulations of the U.S. Department of Commerce. 21. The Software under this License is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this License as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this License as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.22. The Software includes the Replay Recovery Console which is based on the Microsoft® Windows® Preinstallation Environment (“WinPE”). AppAssure's WinPE license agreement with Microsoft Licensing, GP specifically requires the end user to accept certain terms and conditions. Accordingly, and notwithstanding any other provision of this License to the contrary, Company hereby further agrees as follows: a) The Replay Recovery Console is limited to use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program, and is not for use as a general purpose operating system or as a substitute for a fully functional version of any operating system product. b) WinPE IS PROVIDED “AS IS” AND WITH ALL FAULTS. c) THE REPLAY RECOVERY CONSOLE CONTAINS A SECURITY FEATURE THAT WILL CAUSE THE COMPUTER SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO THE END USER AFTER 24 HOURS OF CONTINUOUS USE (OR 72 HOURS OF CONTINUOUS USE IN THE CASE OF CERTAIN VERSIONS OF WINPE). d) Any and all liability of Microsoft Licensing, GP (and any entity that directly or indirectly controls, is controlled by, or is under comment control with Microsoft Licensing, GP, including Microsoft Corporation) related to Software, including the Replay Recovery Console and WinPE, are disclaimed in full and without condition. e) All customer support issues relating to the Software will be handled solely by AppAssure. f) Company is specifically prohibited from reverse engineering, decompiling or disassembling WinPE, except to the extent expressly permitted by applicable law. g) The Software is subject to U.S. export jurisdiction. 23. Company agrees to pay AppAssure: i) all fees set forth in the Purchase Documents, as well as any other fees authorized by Company hereunder (including without limitation in connection with Section 16 above or Section 24 below), and ii) any applicable sales, use, excise and other similar taxes. If not paid immediately at point of purchase, all fees are due and payable to AppAssure within 10 days from the date an invoice covering the same is sent to Company. Fees are based upon a) AppAssure's standard charges in effect on the date of purchase by Company or b) a specific price quotation from AppAssure. Unless otherwise specified in the Purchase Documents or a specific price quotation from AppAssure, AppAssure reserves the right to change fees at any time.24. In the case of a Subscription, the following applies: a) The duration of the Subscription will be defined in the Purchase ocuments (“Subscription Period”); provided that if the Subscription Period is not so specified, the Subscription Period shall be one year and license fees will be payable in quarterly installments. b) Each Subscription will automatically renew on a month to month basis at the end of each Subscription Period unless either AppAssure or Company has provided the other party with written notice of non-extension at least five days prior to the end of the Subscription Period as then in effect. Any renewed Subscription may be terminated by either party, effective at the end of any month, upon notice of termination given at least five days prior to the last day of such month. c) In the case of a Subscription, at any time during the Subscription Period, Company may add additional users, sites or other units of use to the Software then-currently provided under the Subscription at the same pricing and license terms as the initial subscription price set forth in the Purchase Documents. Fees for any add-ons to the Subscription will be prorated as applicable for the remainder of the Subscription Period. Add-ons to the Subscription added in the middle of a billing month will be charged in full for that billing month. 25. As applicable, Company hereby authorizes AppAssure to charge fees to the payment card number provided by Company. By submitting a payment card number as the form of payment, you, on behalf of Company, represent and warrant that your and Company's use of the particular card is authorized and that all information submitted is true and accurate (including, without limitation, payment card number and expiration date). In doing so, you, on behalf of Company, also authorize AppAssure to charge to the payment card tendered all amounts payable by Company to AppAssure (including, if applicable, all Subscription renewal and maintenance fees). Company agrees to update its account registration and payment card information immediately with any change in the payment card information including, but not limited to, any change in expiration date. If AppAssure is unable to process the payment card at any time, Company's account may be immediately suspended or terminated and Company will remain responsible for all amounts payable by Company to AppAssure. The payment card issuer agreement governs use of the payment card and you and Company must refer to that agreement with respect to rights and liabilities as a cardholder. If AppAssure does not receive payment from its payment card issuer or its agent, Company agrees to pay AppAssure all amounts due upon demand by AppAssure. AppAssure shall be held harmless for any claim whatsoever arising out of discontinuance of a Subscription by AppAssure due to nonpayment by Company.26. Company shall permit AppAssure or persons designated by AppAssure to audit Company to confirm compliance with this License. AppAssure shall give Company 10 days prior written notice before commencement of any audit. Any such audit shall be conducted during Company's regular business hours in such a manner as not to unreasonably interfere with normal business activities of Company. Company agrees to provide AppAssure reasonable cooperation and assistance, including reasonable access to facilities, computer equipment, personnel and documents.27. Except for the payment of fees, neither party shall be in breach of this License due to failure of performance that arises out of causes beyond its reasonable control.28. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this License is found void and unenforceable, it will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. 29. This License shall be governed by and construed and enforced in accordance with the laws of the Comonwealth of Virginia and the federal U.S. laws applicable therein, without giving effect to the choice of law rules thereof. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this License. Furthermore, the parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this License, and the parties waive any and all rights they may have under any state laws(s) adopting UCITA in any form.30. This License constitutes the entire agreement between Company and AppAssure relating to its subject matter and all terms herein and supersedes all prior or contemporaneous agreements or understandings. This License may be modified or changed only in writing by authorized representatives of Company and AppAssure.31. In the event Company obtained the Product from an AppAssure-authorized managed services provider or other distributor (each, “Distributor”): (a) as used in this License, “Purchase Documents” shall refer to Company's agreement with Distributor; (b) all software license keys shall be obtained directly from Distributor (notwithstanding Section 3 of this License) and (c) Sections 6, 16, 17 and 23 of this License shall not apply to Company.