“Additional Software” means software that is added to the EDPM Appliance after installation of the original image and that supports the functions of the EVault Software for Microsoft System Center Data Protection Manager.
“Agent Software” means that Licensed Software identified as agent software on EVault’s price list.
“Agreement” means the Order Form and these Product Terms.
“Appliance” means an appliance that is comprised of the Appliance Hardware and Appliance Software, as set forth in the applicable Order Form.
“Appliance Fees” means the Purchase Price, any monthly fees and any support fees, as well as any other related fees (including without limitation license fees for additional Licensed Software and related support), set forth in the applicable Order Form.
“Appliance Hardware” means that server and storage Hardware that is pre-configured to include the Appliance Software.
“Appliance Software” means the Licensed Software, operating system and any other software set forth in the applicable Order Form that is preloaded or otherwise installed onto the Appliance Hardware by EVault.
“CDR Service” means the EVault Cloud Disaster Recovery Service.
“Change Request” means a written request to change the terms or scope of a Statement of Work.
“Channel Partner” means an EVault distributor or reseller through which the Products are licensed or sold.
“Claim” means a claim, suit or other similar proceeding.
“Confidential Information” means (a) any confidential, proprietary or trade secret information of the disclosing party (“Discloser”) that if in tangible form is marked as confidential, secret or with a comparable legend or if disclosed orally or visually is identified as confidential at the time of disclosure; and (b) discussions relating to such information. Discloser shall use reasonable efforts to mark its confidential information in tangible form as confidential; however, tangible information that does not bear such a legend and the discussions relating thereto, will be protected hereunder as Confidential Information if the receiving party (“Recipient”) knew or should have reasonably known under the circumstances that the information is confidential. Customer Data is deemed to be Confidential Information.
“Covered Equipment” means that equipment listed on the applicable DR Schedule.
“Covered Site” means that location listed on the applicable Order Form where the Covered Equipment is located for which Customer may use the CDR Services.
“Customer Data” means any data, information and other materials generated by the Users’ use of the Licensed Software and that is stored by EVault as a part of the Subscription Services or Other Services.
“Deliverables” means any deliverables provided to Customer pursuant to a Statement of Work.
“Desktop Functions” means consumer or business tasks or processes performed by a computer or computing device including email, word processing, spreadsheets, database, network/Internet browsing, scheduling and personal finance.
“Disaster” means any unplanned event or condition that renders Customer unable to use the Covered Equipment for its intended computer processing and related business production purposes.
“Documentation” means the then-current, generally available, written instructions, user guides, and user manuals for the Products, if applicable, whether in electronic, paper or other equivalent form, provided by EVault and in connection with any updates, modifications and improvements to the Products, regardless of form or media.
“DR Schedule” means the description of Covered Equipment at the Covered Site for which the Customer may use the CDR Services.
“EDPM Appliance” means that Appliance known as the EVault Software for Microsoft System Center Data Protection Manager Appliance.
“End-User Client Software” means that Licensed Software licensed to Customer to install and use on servers and Users’ computers that are being backed up, as indicated in the applicable Documentation, including, without limitation, Agent Software, Plug-in Software and EVault ProMail Software.
“EVault Archive” means a Subscription Service that provides archiving capabilities.
“EVault Endpoint Protection Service” means a Subscription Service that provides off-site automated data protection and recovery for laptop and desktop devices.
“EVault ProMail Service” means a Subscription Service that provides capture, archiving and management of e-mail and instant messages using the EVault ProMail Software.
“EVault ProMail Software” means that Licensed Software known as the EVault ProMail software.
“EVault Quick Ship Module” means that Appliance that is used to transport Customer Data from EVault to Customer or Customer to EVault.
“EVault SaaS Services” means a Subscription Service that provides off-site automated data protection and recovery using Licensed Software.
“Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
“Fees” has the meaning set forth in Section 4.1 of these Product Terms.
“High Risk Use” means a use where failure or fault of any kind of the Product could lead to death or serious bodily injury of any person or to severe physical or environmental damage including, without limitation, aircraft or other modes of human transportation, nuclear or chemical facilities or medical devices.
“Hardware” means computer servers and/or other data storage appliances either sold alone or as a part of an Appliance.
“Hosting Services” means those hosting services, including space, power and bandwidth, including, without limitation, hosting services for the EVault Plug-n-Protect appliance.
“Indemnified Parties” means the officers, directors, employees and agents of the party seeking indemnification.
“Intellectual Property Rights” means, collectively, all worldwide intellectual property rights in and to any works of authorship, moral rights, copyrights, trademarks, service marks, patents, designs, trade secrets and algorithms.
“Licensed Software” means the machine-readable, object-code version of EVault’s proprietary software, including all related Documentation and any modified, updated or enhanced versions and recovery images of the program that Seller may provide to Customer. Licensed Software does not include any Third Party Software offered under a third party license agreement, but it may include Third Party Software sublicensed to Customer by Seller subject to the terms of this Agreement.
“Maintenance Release” means a Licensed Software release containing error corrections or minor enhancements, in Executable Code form, that is made commercially available by EVault and generally indicated by a change to the digit to the right of the first decimal point or a change in the digit to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or a change from version x.x.x to x.x.y) and any corrections and updates to the associated Documentation.
“New Version” means a Licensed Software release containing major new enhancements, features or functionality, in Executable Code form, that is made commercially available by EVault and generally indicated by a change in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x) and the associated Documentation.
“Order Form” means the ordering documents, in a form specified by EVault, that is signed and submitted by Customer to Seller.
“Other Services” means those subscription services provided by Seller, other than the Subscription Services, including, without limitation, the CDR Service.
“Passive Vault” means that virtual, dedicated environment provided on EVault’s System to which Customer replicates its active, local vault under the EVault Offsite Replication Service.
“Plug-in Software” means that Licensed Software identified as a software plug-in on EVault’s price list.
“Premium Data Transfer Services” means those services that provide for the transfer of data via an Appliance, including, without limitation, the QuickShip DAS, QuickShip Vault, Data Recovery DAS, Data Recovery Vault, Seeding DAS and Seeding Vault.
“Product Terms” means these Product Terms and Conditions – All Other Products and Services (excluding the EVault SaaS SBE Service).
“Products” means one or more of the following products or services purchased by Customer as set forth in an Order Form: Subscription Services, license to use Licensed Software, Software Managed Services, Hosting Services, Support Services, Professional Services, Hardware and Appliances.
“Professional Services” means implementation, training, installation and data recovery, migration and restoration services and other professional services provided by Seller to Customer, but specifically excluding Subscription Services, Support Services, Software Managed Services and Hosting Services.
“Project Coordinator” means that project coordinator, designated by Customer, in connection with Professional Services.
“Purchase Price” means the one-time purchase price for the Appliance, as set forth in the applicable Order Form.
“Regulatory Agencies” has the meaning set forth in Section 5.6 of these Product Terms.
“Seller” means EVault, if the Products are purchased or licensed by Customer directly from EVault, and Channel Partner, if the Products are purchased or licensed by Customer from a Channel Partner.
“Server Environment” means that hardware and operating system combination for which Customer licenses the Server Software.
“Server Software” means that Licensed Software for installation and use on a Server Environment, as indicated in the applicable Documentation.
“Service Effective Date” means (a) with respect to Subscription Services, Other Services, Hosting Services and Software Managed Services, the date upon which EVault notifies Customer by e-mail or otherwise that installation is complete or the service is operational; and (b) with respect to Support Services, the date the related Licensed Software is delivered.
“Software Managed Services” means delivery and management of equipment, applications and/or systems relating to the use of Licensed Software.
“Source Code” means the human-readable version of a software program than can be compiled into Executable Code.
“Statement of Work” means a statement of work signed by the parties pursuant to which EVault provides Professional Services to Customer.
“Subscription Services” means the provision of access over the Internet to the functionality of the Licensed Software running on the EVault System including the EVault SaaS Services, the EVault Managed Service, the EVault Endpoint Protection Service, the EVault ProMail Service, EVault Archive, EVault Storage Cloud Data Protection Service for NetApp and the EVault Offsite Replication Service.
“Support Fees” means those fees for the purchase, extension or renewal of Support Services, as set forth in the applicable Order Form.
“Support Services” means maintenance and technical support services provided by EVault or its Channel Partner for Products, but specifically excluding Software Managed Services, Hosting Services and Professional Services.
“System” means the computer hardware and software (including, without limitation, the Licensed Software and other software applications, software interfaces, operating system and databases), data storage and all other resources (including, without limitation) telecommunications equipment) used by EVault to make Licensed Software and Customer’s data available to, and usable by, Customer via the Internet, which may be located at third party data centers and public cloud infrastructures that are utilized by EVault under contract.
“Taxes” has the meaning set forth in Section 4.4 of these Product Terms.
“Term” has the meaning set forth in Section 11.1 of these Product Terms.
“Third Party Software” means any software, licensed as a stand alone product or as a part of another software, that is not owned by EVault or its subsidiaries.
“Transfer Appliance” means an Appliance leased or purchased by Customer as a part of the Premium Data Transfer Services.
“Users” means Customer’s employees, contractors and agents.
“Warm Site” has the meaning set forth in Section 3.1 on Exhibit A of these Product Terms.
“WinPE” has the meaning set forth in Section 5.4 of these Product Terms.