PRODUCT TERMS AND CONDITIONS – US
TRIAL LICENSES AND TRIAL SUBSCRIPTIONS
All trial licenses and trial subscriptions, including, without limitation, proofs of concept and demonstration licenses, to use products and services sold or licensed by EVault Inc., a Delaware corporation with offices located at 6121 Hollis Street, Suite 2, Emeryville, California 94608, (“EVault”) are subject to these Product Terms and Conditions – Trial Licenses and Trial Subscriptions (the “Trial Product Terms”). To receive a trial license or trial subscription from EVault, Customer must sign and deliver to EVault an Order Form. That Order Form refers to these Trial Product Terms, which are incorporated into and made a part of that Order Form by reference. Collectively, the Order Form and these Trial Product Terms comprise the Agreement for limited use of the Licensed Software and Services. Capitalized terms used in these Trial Product Terms are defined in Exhibit A.
1. ORDER FORM. By signing an Order Form, each of EVault and Customer has caused these Trial Product Terms to be executed by its duly authorized representative and agrees to be bound by these Trial Product Terms. EVault does not accept, and hereby expressly rejects, any additional or inconsistent terms that may be included on Customer’s purchase orders or otherwise submitted or referenced by Customer.
2. TRIAL LICENSE. Subject to the terms and conditions of this Agreement, during the Trial Period, EVault grants to Customer, for use solely by Customer and its Users, a limited, non-exclusive and non-transferable right and license to install, test and use the Licensed Software for the sole internal business purpose of testing and evaluating the Licensed Software.
3. TRIAL SUBSCRIPTION.
3.1 Provision of Services. Subject to the terms of this Agreement, during the Trial Period, EVault will provide to Customer the Licensed Software as a hosted service, as set forth in the applicable Order Form. As a part of the provision of the Services, End-User Client Software must be installed on Customer’s systems and Customer must access other Licensed Software running on EVault’s Systems via the Internet. Subject to the terms and conditions of this Agreement, EVault grants to Customer, for use solely by Customer and its Users, a limited, non-exclusive and non-transferable right and license to (a) install and use the End-User Client Software solely in connection with EVault’s provision of the Services; and (b) access and use the Licensed Software via the Internet for the sole purpose of testing and evaluating the service. Customer may use the Services to backup twenty-five (25) gigabytes of Customer Data. During the Trial Period, Customer shall not rely upon the Services for its data backup and restoration. Customer is responsible for all communication and other costs associated with the use of the Services.
3.2 Passwords. Users will access the Licensed Software by means of a specific account and passwords provided by EVault. EVault will issue to Customer, or will authorize Customer to issue, a password (each, a “Password”) for each User authorized to access the Licensed Software using Customer’s account. EVault encourages Customer to change the Passwords issued by EVault. In addition, Customer will designate its own key for the encryption of Customer Data; if Customer loses its encryption key, it may not be able to access its data. Customer is solely responsible for the confidentiality and use of its Passwords and the Customer account. In no event will EVault be liable for any loss of Customer Data or other claims to the extent the same arose from unauthorized access to the Customer’s account by obtaining a Password caused by a negligent or an intentional act or omission of Customer.
4.1 Restrictions On Use. Customer will not, directly or indirectly, (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software; (b) merge the Licensed Software with other software; (c) sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Licensed Software to any third party except as specifically permitted by this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Software or evaluate the Licensed Software in order to develop a competitive product; (e) use the Licensed Software or Services to process data or provide any service bureau activity for any third party except as specifically permitted by this Agreement; (f) otherwise use the Licensed Software except as expressly allowed under this Section 4; (g) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with its Users’ use of the Licensed Software; (h) willfully tamper with the security of the any of the Systems or tamper with other Customer accounts of EVault; (i) attempt to access data on the System not belonging to or intended for Customer; (j) attempt to probe, scan or test the vulnerability of any Systems or to breach the security or authentication measures without proper authorization; (k) willfully render any part of the Systems unusable; or (l) publish or disclose to third parties any evaluation of the Licensed Software or Services without EVault’s prior written consent.
4.2 Third Party Software. Notwithstanding anything to the contrary contained in the Agreement, any Third Party Software included in the Licensed Software or licensed as a stand alone product is subject to the terms and conditions of any end user license agreement accompanying such software and/or posted on EVault’s website. If the Licensed Software includes Microsoft Corporation’s WinPE software and related utility programs (“WinPE”), Customer may only use WinPE as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not as a general purpose operating system product. CUSTOMER UNDERSTANDS THAT WINPE CONTAINS A SECURITY FEATURE THAT WILL CAUSE THE COMPUTER SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO THE END-USER AFTER TWENTY-FOUR (24) HOURS OF CONTINUOUS USE. To the maximum extent permitted by applicable law, neither Microsoft Corporation nor any of its affiliates shall be liable to Customer for any claims or amounts relating to WinPE. Further, Microsoft Corporation and its affiliates will not provide Customer with any customer support for WinPE.
5. TITLE. Customer acknowledges and agrees that as between EVault and Customer title to and ownership of the Licensed Software, Services and Systems, including all corrections, enhancements, or other modifications to the Licensed Software, whether made by EVault or any third party, and all Intellectual Property Rights therein, are and will at all times be deemed the sole and exclusive property of EVault. All rights not expressly granted to Customer in this Agreement are reserved by EVault. Customer shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by EVault on or in the Licensed Software and Services.
6. CUSTOMER DATA. Customer retains all right, title and interest, including all Intellectual Property Rights, in and to all Customer Data. During the Trial Period, Customer may backup live data or test data; provided, however that Customer shall use the Licensed Software to encrypt all Customer Data that is backed up using the Services. Customer understands and agrees that any Customer Data that is not encrypted may not be backed up to the System. Customer agrees to indemnify and hold harmless EVault and its officers, directors, employees and agents from and against all third party claims (a) that Customer Data infringes, misappropriates or violates any third party’s Intellectual Property Rights and any other claims relating to Customer Data; and (b) arising from or relating to the failure of Customer to encrypt Customer Data. In addition, EVault and Customer understand and agree to the terms and conditions set forth in the Privacy and Security Addendum located at www.evault.com and incorporated herein by reference.
7. TERMINATION. Either party may immediately terminate this Agreement prior to the end of the Trial Period upon written notice to the other party. Upon termination or expiration of the Trial Period, all licensed rights granted in this Agreement will immediately cease to exist, and Customer must promptly discontinue all use of the Licensed Software and Services and return to EVault or destroy all copies of the Licensed Software in Customer’s possession or control and certify in writing to EVault that it has fully complied with these requirements. Unless Customer enters into a definitive written agreement for Services on or before the expiration or termination of the Trial Period, EVault will promptly delete all Customer Data backed up to its Systems following the termination or expiration of the Trial Period, and EVault will have no liability for such action. Sections 6, 7, 8, 9 and 10 will survive termination or expiration of this Agreement for any reason.
8 NO WARRANTY. THE LICENSED SOFTWARE, INCLUDING THIRD PARTY SOFTWARE, AND SERVICES ARE PROVIDED “AS IS.” EVault EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED SOFTWARE AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EVault DOES NOT WARRANT THAT THE LICENSED SOFTWARE AND SERVICES WILL FUNCTION ERROR-FREE OR WITHOUT INTERRUPTION. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE OR SERVICES WHEN ENTERING INTO THIS AGREEMENT.
9. LIABILITY LIMITATION. IN NO EVENT WILL EVault BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT EVault HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT. IN NO EVENT WILL EVault’s TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE LICENSED SOFTWARE AND SERVICES EXCEED THE ACTUAL AMOUNT OF FEES PAID TO EVault FOR THE AFFECTED LICENSED SOFTWARE OR SERVICES. CUSTOMER ACKNOWLEDGES THAT EVault WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
10.1 Entire Agreement. This Agreement, including the Order Form and these Trial Product Terms, constitutes the entire agreement between the parties and supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both parties. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
10.2 Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including any licenses granted herein) to any third party without EVault’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
10.3 Compliance With Laws. Each party shall be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement, and agrees to comply with all such laws, regulations and other legal requirements. The Licensed Software is subject to the customs and export control laws and regulations of the United States and any country where the Licensed Software is manufactured, received or used. The Licensed Software may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. Customer shall comply with these laws and regulations.
10.4 Governing Law and Dispute Resolution. This Agreement will be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. This Agreement will be deemed to have been made and entered into in Santa Clara, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties will attempt to resolve any dispute relating to this Agreement by good faith negotiation between business principals for ten (10) business days. Thereafter, the parties will submit their dispute to mediation before an agreed mediator from Judicial Arbitration and Mediation Services (“JAMS”) or its successor, to be scheduled within ten (10) business days. The parties will conduct all mediations at a JAMS facility in Santa Clara County, California, USA, to whose jurisdiction the parties consent, and will bear their own costs. Neither party may commence a civil action with respect to the matters submitted to mediation until after completing mediation. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the United States District Court for the Northern District of California, San Francisco Branch and the Superior and Municipal Courts of the State of California, Santa Clara County, in any litigation arising out of or in connection with this Agreement. Notwithstanding the foregoing, a party will have the right at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world.
10.5 Remedies. Customer acknowledges that the Licensed Software contains valuable trade secrets and proprietary information of EVault, that any actual or threatened breach of Sections 2, 3, 4 or 5 will constitute immediate, irreparable harm to EVault for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach. Accordingly, Customer agrees that EVault shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach by Customer, without the need to post a bond, and that nothing herein shall limit EVault’s right to any remedies at law.
10.6 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by e-mail, by courier, by overnight mail service or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for Customer set forth in the Order Form (or if none is specified, that address to which EVault sends invoices) and for EVault, to EVault’s Legal Department at 3101 Jay Road, Suite 110, Santa Clara, California 95054 or email@example.com, and will be effective upon receipt. Either party may change its address by giving written notice of the new address to the other party in writing.
Exhibit A: Definitions