Dell AppAssure End User License Agreement (EULA)

Choose EULA for your software version:

AppAssure software version 5.0 and above
AppAssure software below version 5.0

Applies to all AppAssure software version 5.0 and above.

Version available as a PDF for download.

Dell End User License Agreement Ver. 1.3
Application Software

THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND DELL PRODUCTS L.P., A TEXAS LIMITED PARTNERSHIP, OR DELL GLOBAL B.V. (SINGAPORE BRANCH), ON BEHALF OF DELL INC. AND ITS WORLDWIDE SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “Dell” OR “DELL”), WHICH GOVERNS YOUR USE OF THE SOFTWARE. THE SOFTWARE SHALL MEAN COLLECTIVELY THE SOFTWARE PROGRAM, THE ASSOCIATED MEDIA, PRINTED MATERIALS, ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY COPIES THEREOF, TO WHICH THIS AGREEMENT IS ATTACHED OR OTHERWISE ASSOCIATED (the “Software” or “SOFTWARE”). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING, WITHOUT LIMITATION, ANY SUPPLEMENTAL TERMS AND CONDITIONS APPEARING OR REFERENCED BELOW, WHICH ARE HEREBY MADE PART OF THIS END USER LICENSE AGREEMENT (COLLECTIVELY, “EULA”), BEFORE DOWNLOADING, INSTALLING, ACTIVIATING AND/OR OTHERWISE USING THE SOFTWARE. BY EXPRESSLY ACCEPTING THESE TERMS OR DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, THEN YOU MAY NOT DOWNLOAD, INSTALL, ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE AND YOU MUST PROMPTLY RETURN THE SOFTWARE AND ANY HARDWARE TO WHICH IT IS ATTACHED, AS DIRECTED BY DELL OR ITS RESELLER (IF APPLICABLE) FOR A FULL REFUND. IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY.

License. Provided that you timely pay and comply with the terms, conditions and limitations of this EULA (as a condition to the grant below), Dell hereby grants you a limited, nonexclusive, nontransferable, non-assignable license, without rights to sublicense, to install or have installed, display and use the Software (in object code only) solely for internal business purposes, only on as many computers, devices and/or in such configurations as you are expressly entitled (e.g., as set forth in the applicable Dell sales quote). The terms and conditions of this EULA will govern use of the Software and any upgrades, updates, patches, hotfixes, modules, routines, feature enhancements and/or additional versions of the Software provided by Dell, at Dell’s sole discretion, that replace and/or supplement the original Software (collectively, “Update”), unless such Update is accompanied by or references a separate license agreement in which case the terms and conditions of that agreement will govern. If this EULA governs your use of an Update, such Update shall be considered Software for purposes of this EULA. Unless earlier terminated as provided herein, the term of each individual license granted under this EULA begins on the date of acceptance of this EULA, your installation of the Software or your use of the Software, whichever occurs first, and continues only for such period as you have purchased, in the case of a term license, and is perpetual if no term is specified. Customer may use only portions of Software for which it has paid the applicable license fee.
License Limitations. You may not copy the Software except for a reasonable number of copies solely as needed for backup or archival purposes or as otherwise expressly permitted in Section 1 “License” above. You may not modify or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary notices or markings on or in the Software. The rights granted herein are limited to Dell’s and its licensors’ and suppliers’ intellectual property rights in the Software and do not include any other third party’s intellectual property rights. If the Software was provided to you on removable media (e.g., CD, DVD, or USB drive), you may own the media on which the Software is recorded but Dell, Dell’s licensor(s) and/or supplier(s) retain ownership of the Software itself and all related intellectual property rights. You are not granted any rights to any trademarks or service marks of Dell. This EULA does not apply to any third party software that is not included as part of the Software. The use of any other software, including any software package or file, whether licensed to you separately by Dell or by a third party, is subject to the terms and conditions that come with or are associated with such software.
Rights Reserved. THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted in this EULA, Dell, on behalf of itself and its licensors and suppliers, retains all right, title, and interest in and to the Software and in all related content, materials, copyrights, trade secrets, patents, trademarks, derivative works and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights (the “Works”). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works, except as specifically permitted herein, is strictly prohibited. Dell, on behalf of itself and its licensors and suppliers, retains all rights not expressly granted herein.
Restrictions. Except as otherwise provided herein or expressly agreed by Dell, you may not, and will not allow a third party to (A) sell, lease, license, sublicense, assign, distribute or otherwise transfer or encumber in whole or in part the Software; (B) provide, make available to, or permit use of the Software in whole or in part by, any third party, including contractors, without Dell’s prior written consent, unless such use by the third party is solely on Customer’s behalf, is strictly in compliance with the terms and conditions of this EULA, and you are liable for any breach of this EULA by such third party (a “Permitted Third Party”); (C) copy, reproduce, republish, upload, post or transmit the Software in any way (D) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code (or underlying ideas, algorithms, structure or organization) from the Software program, in whole or in part; (E) modify or create derivative works based upon the Software (except as set forth in Section 13 – Development Tools); (F) use the Software on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet “links” to the Software or “frame” or “mirror” the Software on any other server or wireless or Internet-based device; (G) use Software that was loaded by Dell onto specific hardware (an “Appliance”) separately from such Appliance; or (H) use the Software to create a competitive offering. You may not, and will not allow a Permitted Third Party to, use the Software in excess of the number of licenses expressly authorized by Dell. In addition, you may not share the results of any benchmarking of the Software without Dell’s prior written consent.
Compliance. You will certify in writing, upon reasonable request by Dell, that all use of Software is in compliance with the terms of this EULA, indicating the number of Software licenses deployed at that time. You grant Dell, or an agent selected by Dell, the right to perform a reasonable audit of your compliance with this EULA during normal business hours. You agree to cooperate and provide Dell with all records reasonably related to your compliance with this EULA. If, as a result of the audit, a deficiency of greater than five percent (5%) is found in the licensee fees paid, then you shall bear the total cost of the audit, in addition to any other liabilities you may have.
Support and Subscription Services Not Included. Dell does not provide any maintenance or support services under this EULA. Maintenance and support services, if any, are provided under a separate agreement, which may be located at www.Dell.com/servicecontracts. Additionally, this EULA, in and of itself, does not entitle you to any Updates at any time in the future.
Termination. Dell may terminate this EULA immediately and without prior notice if you fail to comply with any term or condition of this EULA or if Dell does not receive timely payment for the licenses to the Software or for the hardware to which it is attached, if any. In addition, Dell may terminate any license to Software distributed for free at any time in its sole discretion. Either party may terminate this EULA at any time by providing at least ninety (90) days prior written notice to the other party. In the event of termination of this EULA, all licenses granted hereunder shall automatically terminate and you must immediately cease use of the Software and return or destroy all copies of the Software. The parties recognize and agree that their obligations under Sections 3, 4, 7, 10, 11, 12, 17, 18, 19, 20, 22 and 23 of this EULA, as well as obligations for payment, survive the cancellation, termination, and/or expiration of this EULA, and/or the licenses granted hereunder.
Export, Import and Government Restrictions. You are advised that the Software is subject to U.S. export laws as well as the laws of the country where it is delivered or used. You agree to abide by these laws. Under these laws, the Software may not be sold, leased, or transferred to restricted countries (currently Cuba, Iran, North Korea, Sudan and Syria), restricted end-users, or for restricted end-uses. You specifically agree that the Software will not be used for activities related to weapons of mass destruction, including but not limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons. You understand that certain functionality of the Software, such as encryption or authentication, may be subject to import restrictions in the event you transport the Software from the country of delivery and you are responsible for complying with applicable restrictions.

The Software and documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is Dell Products L.P., One Dell Way, Round Rock, Texas 78682.
Limited Warranty. Unless otherwise provided in the limited warranties for the Software found at www.Dell.com/Warranty, Dell solely warrants that it has the right to grant the licenses to the Software, and except as set forth in Sections 14 and 16 below, that such Software will substantially conform in material respects to the functional specifications and current official documentation provided by Dell with the Software. This limited warranty is not transferable and extends only for thirty (30) days from the date of delivery of the Software, unless otherwise stated at www.Dell.com/Warranty. This limited warranty does not cover damages, defects, malfunctions or failures caused by any unauthorized modification by you, or your agents, of the Software; any abuse, misuse or negligent acts of you; modification by you of any interfaces or any software or hardware interfacing with the Software; or any failure by you to follow Dell’s installation, operation or maintenance instructions. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, DELL MAKES, AND YOU RECEIVE, NO OTHER WARRANTIES RELATED TO THE SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND DELL SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DELL DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE AND THE RESULTS ACHIEVED. YOUR SOLE AND EXCLUSIVE REMEDY, AND DELL’S ENTIRE LIABILITY, FOR BREACH OF THE WARRANTIES PROVIDED HEREIN, IS FOR DELL, AT ITS SOLE DISCRETION, TO EITHER USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY NON-CONFORMANCE OR TO PROVIDE A REFUND OF THE LICENSE FEES PAID BY YOU TO DELL FOR THE SOFTWARE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED — ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE.
Limitation of Liability. DELL WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE. DELL SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, (E) LOSS OF GOODWILL OR REPUTATION, OR (F) SOFTWARE NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE SOFTWARE OR GOODS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS EULA, DELL’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY DELL FOR THE PARTICULAR SOFTWARE GIVING RISE TO SUCH CLAIM(S).

The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the claim(s) for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of any such liability.

DELL SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
Indemnification. Except where prohibited by applicable law, Dell shall defend and indemnify you against any third-party claim or action that the Software (specifically excluding open source software) infringes or misappropriates that third party’s patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if Dell receives prompt notice of an Indemnified Claim that, in Dell’s reasonable opinion, is likely to result in an adverse ruling, then Dell shall at its sole discretion, (A) obtain a right for you to continue using such Software; (B) modify such Software to be non-infringing; (C) replace such Software with a non-infringing substitute; or (D) provide a reasonable depreciated refund for the allegedly infringing Software. Notwithstanding the foregoing, Dell shall have no obligation under this Section for Indemnified Claims resulting or arising from: (i) modifications of the Software that were not performed by or on behalf of Dell; (ii) your unauthorized use of the Software, or the combination or operation of the Software in connection with a third-party product, software, or service (the combination of which causes the claimed infringement); (iii) your failure to incorporate free Software updates or upgrades that would have avoided the alleged infringement; or (iv) Dell’s compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you (collectively, “Excluded Indemnified Claims”). Dell’s duty to indemnify and defend is contingent upon: (a) your providing Dell with prompt written notice of the third-party claim or action, (b) Dell having the right to solely control the defense and settlement of such claim or action, and (c) your cooperation with Dell in defending and resolving such claim or action. This Section states your exclusive remedies for any third-party claim or action, and nothing in this EULA or elsewhere will obligate Dell to provide any greater indemnity to you. You, at your expense, shall defend and indemnify Dell against any claim, action or proceeding brought against Dell which arises from or is in any manner connected with the Excluded Indemnified Claims.
Confidentiality. You agree to: (A) not use Confidential Information except as necessary to exercise the rights herein and (B) use best efforts to preserve and protect the confidentiality of the Confidential Information. “Confidential Information” means any oral, written, graphic or machine-readable information disclosed by Dell that is (i) identified as confidential; (ii) designated in writing to be confidential or proprietary; or (iii) should be reasonably understood to be confidential. Confidential Information includes the Software and its trade secrets, including but not limited to source code, the development status of the Software, the appearance, content and flow of the user interface of the Software, and the content and documentation of the Software. Confidential Information does not include information that is (a) publicly available other than through a breach of this EULA; (b) known to you prior to such disclosure; or (c) subsequently lawfully obtained by you from a third party that has no obligations of confidentiality. You agree that, without Dell’s prior written consent, you will not grant access to any Dell Confidential Information to any persons or entities except for your employees and agents who have a business need to have such access and who are obligated to maintain the confidentiality thereof as set forth herein. These obligations do not expire. In some, limited circumstances, Dell may need to engage a third party to fulfill its obligations to you under this EULA. By using this Software you agree that Dell may provide your information to such third party for that purpose. Dell may obtain information related to your use of the Software and you agree that we may use such information in aggregate form in an anonymous manner in support of our marketing activities related to the Software. Any feedback, value added changes or suggestions made by you or other information that is provided to Dell relating to the Software shall be owned by Dell and considered Dell Confidential Information.
Development Tools. If the Software includes development tools, such as scripting tools, APIs, or sample scripts (collectively “Development Tools”), you may use such Development Tools to create new scripts and code for the purpose of customizing your use of the Software (within the parameters set forth in this EULA and within the parameters set forth in the Development Tools themselves) and for no other purpose. Notwithstanding anything to the contrary set forth in this EULA, no warranty or technical support is provided for sample scripts contained in such Development Tools or scripts or other code written by you or any third party.
Evaluation Licenses. If you have received Software for evaluation purposes (“Evaluation Software”), you may use the Evaluation Software solely for such limited evaluation period and for internal evaluation purposes only. You acknowledge that Dell may terminate your right to evaluate the Evaluation Software, for any or no reason, effective immediately upon notice to you. IN ADDITION, THE EVALUATION SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT INDEMNITY OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, DELL BEARS NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION SOFTWARE THROUGH AND AFTER THE EVALUATION PERIOD AND HAS NO DUTY TO PROVIDE SUPPORT TO YOU.
Hosted and Internet-Accessible Software. Some or all of the Software may be remotely hosted or accessible to you through the Internet (“Hosted Software”). In such case, Dell may suspend, terminate, withdraw, or discontinue all or part of the Hosted Software or your access to the Hosted Software upon receipt of a subpoena or law-enforcement request, or when Dell believes, in its sole discretion, that you have breached any term of this EULA or are involved in any fraudulent, misleading, or illegal activities. Dell may modify the Hosted Software at any time with or without prior notice to you. Dell may perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Hosted Software installed on its and your system(s), which may temporarily degrade the quality of the Hosted Software or result in a partial or complete outage of the Hosted Software. Updates, patches or alerts may be delivered from Dell servers, which may be located outside of your country. Dell provides no assurance that you will receive advance notification of such activities or that your use of the Hosted Software will be uninterrupted or error-free.
Open Source Software. The Software may come bundled or otherwise be distributed with open source software, which is subject to the terms and conditions of the specific license under which the open source software is distributed. THIS OPEN SOURCE SOFTWARE IS PROVIDED BY DELL “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, DELL SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. Under certain open source software licenses, you are entitled to obtain the corresponding source files. You may find corresponding source files for the Software at opensource.dell.com or other locations that may be specified to you by Dell.
Excluded Data. Customer acknowledges that Software provided under this EULA is not designed with security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law (collectively referred to as “Excluded Data”). Customer hereby agrees that Customer is solely responsible for reviewing data that it will provide to Dell (or to which Dell will have access) to ensure that it does not contain Excluded Data.
Right to Preliminary and Injunctive Relief. You agree that money damages would be an inadequate remedy for Dell in the event of a breach or threatened breach by you of the provisions set forth in this EULA; therefore, you agree that in the event of a breach or threatened breach of any such provisions, Dell may, in addition to any other remedies to which it is entitled, be entitled to such preliminary or injunctive relief (including an order prohibiting you from taking actions in breach of such provisions) and specific performance as may be appropriate to preserve all of Dell’s rights. All rights and remedies afforded Dell by law shall be cumulative and not exclusive.
Choice of Law and Language. This EULA shall be governed by the laws of the State of Texas, USA, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. You acknowledge that the headquarters of the Dell family of companies is located in Texas, and that the software licensed under this EULA and the related products marketed in connection with such software were in substantial part conceived, developed, and marketed by Dell personnel in Texas. Further, you acknowledge, agree, and stipulate that the laws of the State of Texas bear a substantial relationship to this EULA and that the selection of Texas law to govern this EULA and the license of the Software hereunder is reasonable and appropriate, and you consent to the selection of such law to govern this EULA and the relationship of the parties hereto. This EULA has been agreed only in the English language, which version of this EULA shall be controlling regardless of whether any translations of this EULA have been prepared or exchanged. As an exception to the preceding sentence, if Dell provides this EULA to you only in a non-English language version, then such non-English language version shall control. You acknowledge and represent that you have carefully reviewed this EULA with the involvement and assistance of your employees, advisors, and/or legal counsel fluent in the English language, that you have consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this EULA, that you have no questions regarding the meaning or effect of any of this EULA’s terms, and that you have obtained high-quality translations of this EULA for use by you or any of your team who are not fluent in the English language, with the understanding that you alone shall bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this EULA shall be in the English language.

Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
Dispute Resolution and Binding Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND DELL arising out of or in connection with this EULA, or the breach, termination or validity thereof shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with such rules. The arbitration shall be conducted in the English language. The place of the arbitration shall be a commercial center reasonably chosen by the arbitration panel in a third country so as to ensure that the award resulting from the arbitration shall be of an international character and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief, and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. Neither you nor Dell shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by, or on behalf of any third party to an arbitration brought hereunder. The individual (non-class) nature of this dispute resolution provision goes to the essence of the parties’ dispute resolution agreement, and if found unenforceable, the entire arbitration and dispute resolution provision shall be void. Notwithstanding the foregoing, Dell may apply to any relevant government agency or any court of competent jurisdiction to preserve its rights under this EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled, either against you or against a non-party; provided, however, that no such administrative or judicial authority shall have the right or power to render a judgment or award (or to enjoin the rendering of an arbitral award) for damages that may be due to or from either party under this EULA, which right and power shall be reserved exclusively to an arbitration panel proceeding in accordance herewith. 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 EULA, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form.
No Waiver. No waiver of breach or failure to exercise any option, right, or privilege under the terms of this EULA on any occasion shall be construed to be a waiver of a subsequent breach or right to exercise any option, right, or privilege.
Force Majeure. Dell shall not be responsible for any delay or failure in performance of any part of this EULA to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil, or military authority, act of God, act or omission of carriers, failure of the Internet or other similar causes beyond its control.
No Assignment. Except as set forth herein, you may not assign or transfer your interests, rights or obligations under this EULA by written agreement, merger, consolidation, operation of law or otherwise, without the prior written consent of an authorized executive officer of Dell. Any attempt to assign this EULA by you without such prior written consent from Dell shall be null and void.
Entire Agreement. Unless you have entered into another written agreement with respect to the Software which has been signed by you and an authorized representative of Dell and which conflicts with the terms of this EULA, you agree that this EULA supersedes all prior written or oral agreements, warranties or representations, including any and all other click-wrap, shrink-wrap or similar licenses or agreements, with respect to use of the Software. No amendment to or modification of this EULA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will remain effective. You agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to the terms and conditions of this EULA.
Notices. Notice to Dell under this EULA must be in writing and sent to the address below or to such other address (including facsimile or e-mail) as specified in writing, and will be effective upon receipt.

Dell Inc., Attn: Dell Legal
One Dell Way, Round Rock, Texas 78682

Last rev. 051012

Supplemental Terms and Conditions:

The Software includes the Replay Recovery Console which is based on the Microsoft® Windows® Preinstallation Environment (“WinPE”). Provider’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 EULA to the contrary, you hereby further agree as follows:

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.
WinPE IS PROVIDED “AS IS” AND WITH ALL FAULTS.
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).
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.
All customer support issues relating to the Software will be handled solely by Dell.
You are specifically prohibited from reverse engineering, decompiling or disassembling WinPE, except to the extent expressly permitted by applicable law.
The Software is subject to U.S. export jurisdiction.

END OF DOCUMENT

Applies to all AppAssure software below version 5.

Version available as a PDF for download.

End User License Agreement (EULA)

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. IN INSTANCES WHERE COMPANY PURCHASES THROUGH A RESELLER OR DISTRIBUTOR, FINAL PRICES AND TERMS AND CONDITIONS OF SALE, INCLUDING WITHOUT LIMITATION ANY TERMS REGARDING PAYMENT, RETURN, OR AVAILABILITY OF A TEST DRIVE PERIOD, WILL BE AS AGREED BETWEEN CUSTOMER AND THE THIRD PARTY FROM WHICH CUSTOMER MAKES SUCH PURCHASES; HOWEVER, THE TERMS SET FORTH HEREIN REGARDING COMPANY’S USE OF THE SOFTWARE AND THE PERFORMANCE OF SUPPORT AND OTHER SERVICES REMAIN APPLICABLE.

In this License:
1. “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 Provider.
2. “Provider” means either (i) AppAssure Software, Inc. if AppAssure is supplying the Software, or (ii) the provider of a service that is based on and requires the Software if such provider is supplying the Software.
3. “Documentation” means user manuals, handbooks, pocket guides and all other related materials in print or electronic form supplied by Provider; “Product” means the Software together with the Documentation.
4. “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.
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.
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 PROVIDER 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), PROVIDER WILL PROVIDE LICENSEE WITH A SOFTWARE LICENSE KEY FOR CONTINUED USE IN ACCORDANCE WITH THE TERMS OF THIS LICENSE AND APPLICABLE PAYMENT DOCUMENTATION.
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.
Provider, 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 Provider’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). Provider, together with its suppliers and licensors, reserves all rights not expressly granted in this License.
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, Provider 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.
Company acknowledges that the Product contains valuable copyright, trade secret and other proprietary rights and information and remains the valuable property of Provider 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 Provider 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.
If within the Test Drive Period the Product does not substantially perform as described in the Documentation and Provider is unable to furnish a cure for the defect, Company may return the Product to Provider, if purchased directly from Provider, 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 Provider.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER, ITS SUPPLIERS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE 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 PROVIDER’S, ITS SUPPLIERS’ OR ITS LICENSORS’ LIABILITY HEREUNDER FOR CLAIMS IN THE AGGREGATE EXCEED THE AMOUNT THAT COMPANY PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.
If specified in the applicable Purchase Documents, Provider 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 Provider in its sole discretion.
Where Provider agrees to provide maintenance services, Company understands and agrees that Provider or its suppliers or licensors 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 Provider and its suppliers or licensors have no obligation to maintain, support or correct any Software used in a Configuration not authorized by this License.
Where Provider 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, Provider’s obligations under this License shall apply to the “new” release.
Where Provider agrees to provide maintenance services, and Company encounters a problem with the Software, Company agrees to advise Provider 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 Provider with whatever listings, printouts, screen copies (if available) or additional data or on-site support which Provider may request as necessary or helpful to reproduce the environment in which such licensed Software operated and the suspected error. If Provider determines that there was no malfunction or defect in the licensed Software, Company shall pay for all time and materials spent by Provider attempting to determine and correct the reported problem at Provider’s then-current rates. Company will be billed separately for shipping, documentation and media required to provide program corrections. PROVIDER DOES NOT GUARANTEE THAT ITS SERVICE EFFORTS WILL BE SUCCESSFUL IN ALL CASES, NOR DOES PROVIDER REPRESENT OR WARRANT THAT ALL ERRORS, MALFUNCTIONS OR DEFECTS WILL BE CORRECTED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCT AS PROVIDED BY PROVIDER 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. PROVIDER 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.
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 Provider dealer, agent, employee, or distributor is authorized to make any modification or addition to this License.
Where Provider agrees to provide maintenance services, unless Provider 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, Provider 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 Provider. Provider and its suppliers or licensors shall be held harmless for any claim whatsoever arising out of discontinuance of maintenance services of Software by Provider 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.)
If Company wishes to extend maintenance services, which have been terminated by the Company, or terminated by Provider for nonpayment, Company may do so by written notice to Provider 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.)
Without prejudice to any other rights, Provider (or AppAssure if it is not the Provider) 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 Provider 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, 29, 30, 31 and 32 shall survive termination of this License.
Provider 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 Provider is given prompt written notice of such claim and sole authority to defend it. If such a claim is asserted, Company agrees to permit Provider, 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. Provider 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 supplied by Provider or hardware other than the Configuration identified; (b) modifications to the Products made by anyone other than Provider or its agents; or (c) Company’s failure to use corrections or enhancements that are furnished by Provider, where such correction or enhancement would have avoided the infringement.
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 Provider and in compliance with all applicable law, including the Export Administration Regulations of the U.S. Department of Commerce. Further, certain Software using AES-256 encryption may not be exported/re-exported, either directly or indirectly, to any destination subject to U.S. embargoes or trade sanctions unless formally authorized by the U.S. Government. Note that said embargoed destinations are subject to change and the scope of what technology is included in the embargo is specific to each embargoed country. The U.S. export controls and sanctions are administered by the Bureau of Industry and Security (BIS) under the Export Administration Regulations (EAR) and the Commerce Control List (CCL), in which are contained the most current information on U.S. embargoed and sanctioned countries.
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.
The Software includes the Replay Recovery Console which is based on the Microsoft® Windows® Preinstallation Environment (“WinPE”). Provider’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:
1. 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.
2. WinPE IS PROVIDED “AS IS” AND WITH ALL FAULTS.
3. 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).
4. 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.
5. All customer support issues relating to the Software will be handled solely by Provider.
6. Company is specifically prohibited from reverse engineering, decompiling or disassembling WinPE, except to the extent expressly permitted by applicable law.
7. The Software is subject to U.S. export jurisdiction.
Company agrees to pay Provider: 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 Provider within 10 days from the date an invoice covering the same is sent to Company. Fees are based upon a) Provider’s standard charges in effect on the date of purchase by Company or b) a specific price quotation from Provider. Unless otherwise specified in the Purchase Documents or a specific price quotation from Provider, Provider reserves the right to change fees at any time.
In the case of a Subscription, the following applies:
1. The duration of the Subscription will be defined in the Purchase Documents (“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.
2. Each Subscription will automatically renew on a month to month basis at the end of each Subscription Period unless either Provider 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.
3. 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.
As applicable, Company hereby authorizes Provider 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 Provider to charge to the payment card tendered all amounts payable by Company to Provider (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 Provider 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 Provider. 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 Provider does not receive payment from its payment card issuer or its agent, Company agrees to pay Provider all amounts due upon demand by Provider. Provider shall be held harmless for any claim whatsoever arising out of discontinuance of a Subscription by Provider due to nonpayment by Company.
Company shall permit Provider or persons designated by Provider to audit Company to confirm compliance with this License. Provider 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 Provider reasonable cooperation and assistance, including reasonable access to facilities, computer equipment, personnel and documents.
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.
In the event Company obtained the Product from a Provider-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.
Company is responsible for arranging or providing all facilities, systems, hardware and software required for or relating to the generation, storage, transmission and retrieval of all of Company’s data and the content or information contained or represented by such data, including, without limitation, maintaining appropriate safeguards and security protocols for Company’s data, content and information. Provider is not responsible or liable for any loss, damage, liability, cost or expense of Company arising out of or related to (i) theft, loss or alteration of or damage to Company’s data or information, (ii) improper or unauthorized access to Company’s data or information, (iii) interference with or interruption or errors in the transmission or retrieval of Company’s data or information, or (iv) the design, configuration or implementation of Company’s data generation, storage, transmission and retrieval capabilities.
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.
This License shall be governed by and construed and enforced in accordance with the laws of the Commonwealth 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.
This License constitutes the entire agreement between Company and Provider 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 Provider.