End User License Agreement (EULA)

This is a legal document that states the terms and conditions (“LIcense”) that apply to the use of the Software (as defined below).  AppAssure Software, Inc. (“AppAssure”) is willing to license the Software to you (“Licensee”) upon the condition that Licensee accepts all of the terms and conditions in this EULA.  By using the Software, Licensee agrees to be bound by all of the terms and conditions in this EULA.

1. In this License: "Software" means a computer program and/or data in machine-readable form and subsequent corrections and updates supplied by Appassure; "Documentation" means user manuals, handbooks, pocket guides and all other related materials in printed form supplied by APPASSURE; "Product" means the "Software" together with the "Documentation" specified on the invoice accompanying this License; "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 fee covered by this License.

2. This License is a "Per Mailbox", "CPU" or "Site" license, as specified in payment documentation. A "Per Mailbox User" License is for use on a set of exchange systems that have “up to” the number of mailbox users that are licensed in aggregate.  A "Site" license is for the use on a specified number of CPUs with a specified number of Mailboxes on a site.

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 LICENSEE 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 LICENSEE 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 FEE, 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. Licensee acknowledges that no title to Product is transferred by this License, and that Licensee may retain possession of Product only by complying with the terms herein. With prior consent from APPASSURE, a Licensee may transfer all its rights under this License, provided the Licensee retains no copies of the Product, including documentation and the transferee accepts any applicable obligations under this License.

5. APPASSURE, in consideration of payment in accordance with payment documentation applicable to this License, and subject to the terms herein, hereby grants Licensee a nonexclusive right to use the Software. The Software may be used temporarily on a backup computer during a malfunction of the computer for which it is licensed. The Software may be copied by Licensee to the extent necessary for backup purposes to allow use of the Product as authorized herein. Licensee agrees to include AppAssure's copyright, trade secret and proprietary notices on all copies of the Software. Documentation may not be copied by Licensee. A Per Mailbox User, CPU or Site Licensee may use the Software only in accordance with the Configuration identified on applicable payment documentation.

6. After the Test Drive Period a Per Mailbox User, CPU or Site Licensee may operate the Software on a Configuration larger than the Configuration identified in the payment documentation 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 fee corresponding to the difference between the fee already paid and the fee for the larger Configuration. Upon payment of the invoice, APPASSURE will provide a Per Mailbox User, CPU or Site Licensee with an appropriate extension of the software key necessary for continued use of the Software.

7. Licensee acknowledges that the Product contains valuable copyright, trade secret and other proprietary information and remains the valuable property of APPASSURE. Licensee agrees not to disclose or make available such information to any person for any purpose other than as is necessary for Licensee's use as authorized by this License. Licensee 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.  Except as set forth in this License, Licensee shall not copy, alter, merge, adapt, modify, create derivative works, adapt, reverse engineer, reverse assemble, reverse compile or otherwise translate the Software.

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, Licensee may return the Product to APPASSURE, if purchased directly from APPASSURE, or to the authorized distributor from which itwas purchased, for a full refund of payment actually made. All the Software, Documentation and printed materials must be returned in good condition with a letter from an authorized officer of Licensee certifying that all other copies of the Product have been destroyed.

9. IN NO EVENT WILL, APPASSURE BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS, OR OTHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING FROM THE USE OF OR THE INABILITY TO USE THE PRODUCT. IN NO EVENT WILL APPASSURE'S LIABILITY EXCEED THE LICENSE FEES PAID FOR THE PRODUCT BY THE LICENSEE.

10. If specified in the applicable payment documentation, APPASSURE agrees to provide Licensee 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 8:30 a.m. and 6:00 p.m. Eastern Standard Time, excluding standard holidays, responding in a timely manner upon receipt of Licensee's first call; d) premium twenty-four 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 undertakes maintenance responsibilities as specified in applicable payment documentation, Licensee 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, Licensee 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 undertakes to provide to the Licensee new releases of the Software as specified in applicable payment documentation, and if APPASSURE, at its sole discretion, releases a revision of the Software within the period covered by the applicable payment documentation, after sixty (60) days from shipment of the new release to the Licensee, APPASSURE’s obligations under this License shall apply to the "new" release.  

13. Where APPASSURE undertakes to provide to the Licensee new releases of the Software as specified in applicable payment documentation, and Licensee encounters a problem with the Software, Licensee agrees to advise APPASSURE of the precise nature of the suspected error, malfunction or defect, either in writing by a Software Performance Report (SPR) or by telephone. Licensee 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. Temporary correction; and b) assist the Licensee in preparing an SPR for submission to APPASSURE. If APPASSURE determines that there was no malfunction or defect in the licensed Software, Licensee shall pay for all time and materials spent by APPASSURE attempting to determine and correct Licensee's problems. Licensee will be billed separately for shipping, documentation and media required to provide program corrections.

14. 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.  APPASSURE makes no other warranties whatsoever with respect to the PRODUCT and provides such PRODUCT on an “as is” and “as available” basis.

15. The warranties, limitations of liabilities and remedies set forth in paragraphs 8 through 15 above are exclusive and in lieu of all others, oral or written, expressed or implied. No APPASSURE dealer, agent, employee, or distributor is authorized to make any modification or addition to this License.

16. Where APPASSURE undertakes to provide to the Licensee new releases of the Software as specified in applicable payment documentation, unless APPASSURE or Licensee provides the other party with written notice of cancellation at least sixty (60) days prior to the anniversary date of the applicable payment documentation, APPASSURE will invoice Licensee 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. Licensee 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 Licensee or failure of Licensee to obtain a software key extension where applicable.

17. If Licensee wishes to extend maintenance services, which has been terminated by the Licensee, or terminated by APPASSURE for nonpayment, Licensee may do so by written notice to APPASSURE and payment in advance of a reinstatement fee, separate from and in addition to the maintenance fee.

18. APPASSURE will defend, at its expense, any action brought against Licensee based on a claim that the unaltered Product infringes a United States copyright or patent and will pay resulting costs, damages and attorney's fees finally awarded against Licensee 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, Licensee agrees to permit APPASSURE, at its option and expense, to produce for Licensee 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 Licensee if the alleged infringement is based on the combination, operation or use of the Product with data or software not supplied by APPASSURE or hardware other than the Configuration identified.

19. Licensee 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 the Export Administration Regulations of the Department of Commerce.

20. This license is the complete agreement between Licensee and APPASSURE and supersedes any previous agreement, oral or written, or any other communication relating to this subject matter.

21. All fees are due and payable to APPASSURE within 10 days from the date an invoice covering the same is sent to Licensee. Fees are based upon 1) APPASSURE’s standard charges in effect on the date the software is licensed, or the maintenance service is subscribed, by Licensee or 2) a specific price quotation from APPASSURE.