PHD Virtual Backup for Citrix XenServer 6.0

EULA - End User License Agreement

END USER LICENSE AGREEMENT
THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN LICENSEE AND LICENSOR. BY CLICKING ON “I AGREE” BELOW AND INSTALLING THE SOFTWARE, YOU, ON BEHALF OF LICENSEE, AGREE AND ARE SUBJECT TO THE LICENSE TERMS SET FORTH BELOW. you represent and warrant that you have the legal authority to bind the organization that is to be the licensee hereunder. IF LICENSEE DOES NOT AGREE WITH ANY OF THIS AGREEMENT, DO NOT INSTALL THIS SOFTWARE, DELETE IT FROM ALL OF LICENSEE'S COMPUTER EQUIPMENT, AND RETURN ANY COPIES SHIPPED TO LICENSEE. YOU UNDERSTAND AND ACKNOWLEDGE THAT, ONCE YOU CLICK ON “I AGREE” BELOW, ANY FEES PAID TO LICENSOR FOR THE SOFTWARE ARE NON-REFUNDABLE AND NON-RETURNABLE.

Please print a copy of this Agreement for your records.

1. DEFINITIONS.
1.1 “Affiliate” means any corporation, partnership, joint venture, or other entity (1) as to which a party owns or controls, directly or indirectly, stock or other interest representing more than fifty percent (50%) of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (2) if a partnership, as to which a party or another Affiliate is a general partner; (3) to which a party provides substantial management services under contract; or (4) that a party otherwise is in common control with, controlled by, or controls in matters of management and operations.
1.2 “Agreement” means this End User License Agreement, as may be amended from time to time.
1.3 “Computer” shall mean a single microcomputer, personal computer, workstation, computer terminal, network workstation or network file server.
1.4 A “Derivative Work” means a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement. For purposes hereof, a Derivative Work shall also include any compilation that incorporates such a preexisting work. Unless otherwise provided in this Agreement, all references to the Software include any Derivative Works provided by Licensor or authorized to be made by Licensee hereunder.
1.5 “Documentation” means documentation that describes the function and use of each program in sufficient detail to permit use of the Software.
1.6 “Intellectual Property Rights” means all intellectual property rights protected by law throughout the world, including all copyrights, copyright registrations and applications, trademark rights (including trade dress), trademark registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author's rights, algorithms, rights in packaging, goodwill, and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
1.7 “Licensee” means the single end-user customer organization entering into this Agreement.
1.8 “Licensor” means PHD Virtual Technologies, Inc.
1.9 “Managed Service Provider” means Licensee use of Software to provide remote and/or network-based back up and recovery services to third parties.
1.10 The “Object Code” of the Software means the programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse assembly, reverse compiling, or reverse engineering.
1.11 “Software” means any computer software program provided by Licensor, as applicable to Licensee, comprising the various applications included under this Agreement and any updates, upgrades, enhancements, license keys or other automated copy protection method, error corrections or bug fixes thereto provided by Licensor to Licensee.
1.12 The “Source Code” of the Software means the program(s) written in programming languages, including all comments and procedural code, such as job control language statements, in a form intelligible to trained programmers and capable of being translated into Object Code for operation on computer equipment through assembly or compiling, and may include documentation, such as, flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the program(s) in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the program(s) without undue experimentation.
2. LICENSE GrantS AND RESTRICTIONS.
2.1 Subject to the terms of this Agreement, Licensor grants to Licensee a non-transferable, non-exclusive, non-sublicenseable limited license, under all applicable Intellectual Property Rights, to install, copy, use and display the Software applicable to Licensee on a computer or computer network, owned or controlled solely by Licensee, and to access and permit its employees and consultants to access such Software in accordance with the Documentation, for internal business purposes only. All rights not expressly granted to Licensee hereunder are reserved by Licensor. The Software is “installed” on a Computer when it is copied to the hard disk of a Computer. The Software is in “use” when it is loaded into the Computer's temporary memory (i.e., RAM). If the Software is installed on a network fileserver, each user agrees to be bound by the terms of this Agreement. Licensee may use the licensed Software for the benefit of its Affiliates, provided that they assume and abide by the obligations and restrictions established hereunder. Except as related to the internal business of Licensee and Licensee's Affiliates or as otherwise provided in Section 13 of this Agreement, Licensee may not use the Software to process accounts or records, or to generate output data, for the direct benefit of, or for purposes of rendering services to, any other business entities or organizations.
2.2 If the license granted to Licensee hereunder is a “perpetual” license, such license to operate the Software will remain in full force and effect until the occurrence of any termination event under Section 12.
2.3 Except as expressly set forth in this Agreement, Licensee may not:
(a) (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Software, for any purpose, (ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Software, or (iii) make any modification, enhancement, or Derivative Work of the Software, or incorporate the Software, or any portion thereof, into or with any other software; or
(b) copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Software.
2.4 Notwithstanding the foregoing, Licensee may make copies of the Documentation, containing all legends, trademarks, trade names, copyright notices and other identifications associated with the original, to the extent reasonably necessary to utilize the licensed Software as set forth in this Agreement. Licensee may install the licensed Software solely as set forth below; automated copy protection may prevent any further installation without intervention by Licensor:
(a) If Licensee has purchased a perpetual “server” license, then the Licensee may operate the Software only on a single server Computer unless otherwise agreed in writing by Licensor. Except as otherwise permitted in this Agreement, Licensee may not use this server licensed Software to provide third parties services.
(b) If Licensee has purchased a term “Managed Service Provider” license, then the Licensee may operate the Software only to the maximum number of server or “virtual machines” unless agreed in writing by Licensor.
It is expressly prohibited to use the Software where the result of such an installation will cause the maximum authorized for use to be exceeded. Use of the Software in such manner constitutes a condition of termination pursuant to Section 12.
2.5 Except as specifically set forth in this Agreement, Licensee acknowledges that this Agreement does not grant Licensee any use of or rights to the Software, including, but not limited to, any rights to the Source Code for the Software.
2.6 Licensee acknowledges that Licensor has, and will from time to time create, other computer software programs that may be based upon or related to the Software and that those other programs are not licensed to Licensee under this Agreement.
2.7 Except as specifically set forth herein, Licensee acknowledges that Licensor has no responsibility for providing Licensee with any services, support, product upgrades or other enhancements for or in connection with, and that Licensor is under no obligation to create any product upgrades or enhancements to, the Software.
2.8 Licensee's use of the licensed Software is subject to the license and automated protection methods used by Licensor. Licensee agrees not to take or cooperate in any effort to defeat or avoid these protection methods.
3. EVALUATION LICENSE.
If Licensee receives the Software for evaluation or without payment of a fee, then this Section applies. Licensee may use the Software only for the purpose of evaluating the functions and performance of the Software. The Software may not be used for the processing of any business data or for other commercial use. Licensee acknowledges that evaluation copies of the Software are automatically disabled upon expiration of the designated trial period (at the end of which, Licensee's license also expires).
4. OWNERSHIP.
4.1 Licensee acknowledges that Licensor is the owner of all Intellectual Property Rights associated with the Software and except as set forth in this Agreement, Licensor does not grant any rights to or ownership of the Software to Licensee. Licensee further acknowledges that Licensor retains all right, title and interest in the Software and Documentation and in all improvements, enhancements, modifications and Derivative Works of the Software including all rights to patent, copyright, trade secret and trademark, regardless of the identity of the creating party except for Derivative Works which are built solely from the API's (as defined below) which shall be owned by Licensee. Notwithstanding the foregoing, in the event of the creation of a Derivative Work by Licensee based upon the API supplied by Licensor, Licensee agrees to deliver to Licensor a copy of the source code relating to such Derivative Work. Licensor shall thereafter be permitted to utilize such source code in order to create or enhance its existing products for its customers.
4.2 Licensee agrees that all trademark and intellectual property notices for the Software will be preserved unmodified. Licensee further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Software and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Software except to the extent permitted under this Agreement.
4.3 Licensee shall instruct its employees and agents that making unauthorized copies of the Software or Documentation or any portion thereof, or permitting use of the Software and/or Documentation other than in accordance with the terms of this Agreement, constitutes a violation of copyright law and of this Agreement. If any such employee or agent subsequently makes an unauthorized copy of the Software and/or Documentation or any portion thereof, Licensee shall pay to Licensor the full price for each unauthorized copy, based on Licensor's then current standard rates.
4.4 Licensee agrees not to challenge, directly or indirectly, any right or interest of Licensor in the Software and any improvements, enhancements, modifications and Derivative Works of the Software or the validity or enforceability of Licensor's rights under applicable law. Except as expressly permitted in this Agreement, Licensee agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Software or any improvements, enhancements, modifications or Derivative Works of the Software or to take any other action which may adversely affect Licensor's rights or interest in the Software and any improvements, enhancements, modifications and Derivative Works of the Software in any jurisdiction.
4.5 Licensee agrees to notify Licensor immediately and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Software by any person or entity. Licensee agrees to cooperate fully with Licensor in any litigation relating to or arising from such unauthorized possession or use.
4.6 Licensee acknowledges that, in the event of a breach of its obligations under this Section 4, Licensor may (a) immediately terminate this Agreement, without any Licensor liability to Licensee; (b) bring an appropriate legal action to enjoin any such breach of this Agreement without the need to obtain a bond or other security; and (c) recover from Licensee reasonable attorneys' fees and costs in addition to other appropriate relief.
5. MAINTENANCE plan.
Licensor may, from time to time, offer a service and support plan (a “Maintenance Plan”) in connection with the Software on such terms and conditions as Licensor may determine in Licensor's sole discretion and provide Software updates and telephone support. If Licensee discontinues a Maintenance Plan, Licensor may require Licensee to pay a reinstatement fee in order to purchase further Maintenance Plans. If the purchase documentation specifies certain services as included in the Maintenance Plan, then the Maintenance Plan will include only those services as Licensor, at its sole discretion, defines and modifies those specified services from time to time. If the purchase documentation does not specify the services included in the Maintenance Plan, the Maintenance Plan includes only those services that Licensor identifies as being contained within the Maintenance Plan. Licensor agrees to provide the services in Licensee's Maintenance Plan in a similar manner and degree in which Licensor provides those services to Software licensees who purchase the same Maintenance Plan. Licensee agrees to follow service policies or procedures. Licensor may, at its sole discretion, discontinue any services to Licensee for any version and edition of the Software at any time.
6. WARRANTIES AND DISCLAIMERS.
Licensor does not warrant that the Software will be error-free in all circumstances. Licensor warrants to Licensee that, on the date of Licensee's initial use of the Software and for a period ending thirty (30) days following that date (the “warranty period”), the licensed Software will perform substantially in accordance with the Documentation. In the event of any defect or error covered by such warranty, Licensee will provide Licensor with sufficient detail to allow Licensor to reproduce the defect or error. If notified in writing by Licensee during the warranty period, Licensor will, at its sole option, either (a) correct such error or defect in the Software, at no cost to Licensee and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass, or (b) accept return of the Software and Documentation and refund any license fees previously paid by Licensee in connection with such Software. Licensor is not responsible for any defect or error not reported during the warranty period or any defect or error caused by a program Licensee has modified, misused or damaged. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, OR SATISFACTORY QUALITY REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE.
7. limitation of liability.
Notwithstanding any provision in this Agreement to the contrary, Licensor will not be responsible for or will not bear any liability for any damages arising from any use of the Software, or any stoppages, slowdowns, performance problems or other problems that are the result of the Internet or the Licensee's telecommunications or Internet access providers. IN NO EVENT LICENSOR PARTY BE LIABLE OR OBLIGATED UNDER THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO LICENSOR FOR THE SOFTWARE IN QUESTION, OR (B) FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND. THIS SECTION 7 DOES NOT LIMIT LIABILITY UNDER SECTION 8. licensee MAY NOT BRING ANY CLAIM OR ACTION, REGARDLESS OF THE FORM THEREOF, ARISING FROM OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, MORE THAN ONE (1) YEAR AFTER THE DATE OF THE EVENT FROM WHICH THE CLAIM OR ACTION ARISES OR ACCRUES.
8. intellectual property rights INDEMNIFICATION.
8.1 Licensor agrees to indemnify, defend and hold Licensee harmless from any third party claim that arises out of Licensee's use of the licensed Software and that alleges that such Software or Documentation infringes a third party's proprietary rights in the United States, and Licensor agrees to pay all costs (including, but not limited to, court costs and reasonable attorneys' fees), expenses and damages incurred by Licensee in connection with any such action, provided that (a) Licensee promptly notifies Licensor in writing no later than thirty (30) days after Licensee's notice of any potential claim, (b) Licensee permits Licensor to defend, compromise or settle the claim, and (c) Licensee gives Licensor all available information, reasonable assistance, and authority to enable Licensor to do so.
8.2 If the licensed Software or any portion of the licensed Software becomes, or in Licensor's opinion is likely to become subject to any claim of infringement, Licensor will either (a) procure for Licensee the right to continue exercising its rights under this Agreement with respect to the Software; or (b) replace or modify the Software to make it non-infringing, or if, neither (a) nor (b) are, in Licensor's sole discretion, commercially feasible, terminate the license to the Software granted herein and refund to Licensee a pro-rated portion of the applicable license fee paid for the Software based on a linear depreciation monthly over a three (3) year useful life, in which case Licensee will return to Licensor all copies of the Software and cease all use of it.