StorageCraft Technology CorporationTM Technician License Agreement
for ShadowProtect TM IT Edition 3.4.
Please carefully read the terms and conditions of this license agreement (the “Agreement”) for ShadowProtect IT Edition 3.4 (the “Software”) before accepting the license or using the Software. StorageCraft Technology Corporation, 121 W. Election Rd., Suite 110, Draper, Utah 84020 (“Licensor”), is willing to license the Software to you as the individual, the company, or the legal entity that will be using the Software (“you” or “Licensee”), but only on the condition that you accept all of the terms of this Agreement. This Agreement is a legal and enforceable contract between you and Licensor. By opening the Software packaging, breaking the seal, clicking the “I Agree” button or otherwise indicating assent by loading, using, or retaining the Software, you accept this Agreement and agree to all the terms and conditions it contains. If you do not agree to the terms and conditions, do not open the Software packaging, break the seal, use the software, or click the “I Agree” button. You may contact Licensor’s customer service department (see Section 18.12) for information on obtaining a refund of the license fee paid and instructions on returning the Software and Documentation. If you load, retain, or otherwise use the Software under any trial, evaluation or purchase transaction, your conduct constitutes acceptance of this Agreement and you will be bound by all of its terms and conditions. You may access Licensor’s website at www.storagecraft.com/legal/ to download and print a copy of this Agreement.
This Agreement is made and entered into by and between Licensor and Licensee, which is the Party that has paid the Subscription Fee and accepted this Agreement. The Licensor and Licensee are sometimes collectively referred to as “the Parties” and individually referred to as a “Party.”
Background.
Licensor has developed the Software, which can create, edit, or restore computer backup images without installing software on servers and PCs. The Software provides IT professionals with a bootable Windows environment to create and restore compressed and encrypted backup images. The Software includes an interface for network configuration and a simple view to restore individual files or folders or update backup images. Backup images can be saved to local or network drives and SAN, NAS, iSCSI, SCSI, USB, eSATA or FireWire drives. The Software also provides complete bare metal recovery in minutes.
Licensor provides the Software under various Subscription Periods with renewal payments required for continued use of the Software. Based on the variety of new drivers released to the market and the general progress in the development of the Software, Licensor may from time to time provide updates of the Software to each subscribing Licensee. Licensor makes no warranty, promise, or commitment to upgrade the Software.
LICENSEE UNDERSTANDS AND AGREES THAT ALL FUNCTIONALITY OF THE SOFTWARE WILL TIME OUT AND CEASE TO OPERATE ON THE LAST DAY OF THE APPLICABLE SUBSCRIPTION PERIOD. TO ENSURE THAT AVAILABILITY OF THE SOFTWARE IS NOT INTERRUPTED, IT IS LICENSEE’S RESPONSIBILITY TO MAINTAIN A CURRENT SUBSCRIPTION. IN THE EVENT THAT THE SOFTWARE TIMES OUT AND CEASES TO OPERATE, LICENSOR WILL HAVE NO RESPONSIBILITY TO PROVIDE SERVICE OR SUPPORT FOR THE SOFTWARE FOLLOWING THE END OF THE APPLICABLE SUBSCRIPTION PERIOD.
Licensee is required to designate an individual as the “Designated Technician.” The Designated Technician is the only person authorized to use the Software. The Software is to be used only by the Designated Technician to service a single computer at a time. There is no limit to the number of computers that may be serviced serially using the Software, provided that the Designated Technician does not make simultaneous use of the Software on more than one computer. If an individual other than the Designated Technician will use the Software, an additional license must be obtained for such individual. The Software is not licensed to be copied (except as provided herein), and is not licensed to be installed or redistributed. (See Section 6 of this Agreement for additional requirements concerning the Designated Technician.)
Section 1 Definitions.
1.1. “Activation” (and its variants “activate”, “activated”, and the like) means to provide a serial number to Licensor either automatically via the internet or by contacting Licensor by email, web form, or telephone and receiving from Licensor a License Activation File specific to the Serial Number that is used to unlock a seat of the Software and which specifies a Subscription Period, after which the Software will expire unless renewed.
1.2. “Archival Use” means the creation and confidential storage by Licensee of a single copy of the Software for use by Licensee only in the event that the Original Copy fails to function properly. Archival Use does not include simultaneous use of the Original Copy and the archival copy, which simultaneous use is prohibited by this Agreement.
1.3. “Designated Technician” means the person designated by Licensee to use the Software and to maintain exclusive custody of the Software. If the Licensee is an entity and not an individual, the Designated Technician must be an employee of the Licensee. If the Licensee is an individual, then the Licensee must be the Designated Technician.
1.4. “Documentation” means all on-line help files or written instruction manuals and user guides addressing the use of the Software.
1.5. “Effective Date” means the date on which Licensee has both paid the applicable license fee and accepted this Agreement.
1.6. “Intellectual Property Rights” means all of Licensor’s ownership rights associated with intellectual property and the Software, including but not limited to patents, copyrights, trademarks, and trade secrets, and any and all rights to exclude existing from time to time in a specified jurisdiction under patent law, copyright law, moral rights law, trade-secret law, trademark law, unfair competition law, or other similar rights.
1.7. “License Activation File” means a file on the USB flash media that contains the Original Copy, which file holds the licensing information for the Software, including the serial number, activation codes, and license expiration information.
1.8. “Object Code” means the output of a compiler after it processes Licensor’s Software source code in the form of an executable, dll, or library file.
1.9. “Original Copy” means the single copy of the Software provided to Licensee on USB flash media in conjunction with this Agreement.
1.10. “Renewal Subscription” means one or more additional annual terms of the license granted by the Licensor to Licensee based on Licensee’s payment of the applicable Subscription Fee. A Renewal Subscription provides Licensee with all the rights and benefits of the initial Subscription, but for the term of the Renewal Subscription.
1.11. “Software” means the copyrighted product licensed under this Agreement to Licensee consisting of ShadowProtect IT Edition.
1.12. “Subscription Fee” means the price paid by Licensee to Licensor or its reseller, distributor, or authorized representative in exchange for a license to use the Software during the Subscription Period.
1.13. “Subscription Period” means the term of the license granted by Licensor to Licensee during which Licensee’s Designated Technician may use the Software. The duration of the Subscription Period may be for a trial period, or may be monthly, quarterly, or annual. A “Monthly Subscription” means a license granted by Licensor to Licensee with a Subscription Period of thirty (30) calendar days, which period begins on the date the Software is activated. A “Quarterly Subscription” means a license granted by Licensor to Licensee with a Subscription Period of ninety (90) calendar days, which period begins on the date the Software is activated. An “Annual Subscription” means a license granted by Licensor to Licensee with a Subscription Period of three-hundred sixty-five (365) calendar days, which period begins on the date the Software is activated. A “Trial Subscription” means a license granted by Licensor to Licensee with a Subscription Period of fourteen (14) calendar days, which period begins on the date the Software is activated.
1.14. “Use” means the loading, execution, running, utilization, storage, display, or copying of the Software in its Object Code form by Licensee’s Designated Technician, which is permitted only in accordance with the terms of this Agreement.
Section 2 Proprietary Rights. This is a license and not a sale. The Software and Documentation are proprietary products of Licensor or of its licensors and are protected under United States copyright laws and international treaty provisions. Nothing in this License constitutes a waiver of Licensor’s rights under U.S. or international copyright law or any other law. Ownership of the Software and Documentation and all copies, modifications, translations, and merged portions thereof shall at all times remain with Licensor, including all copyrights, patent rights, trade secret rights, trademarks and other intellectual property rights therein. Licensee’s rights to use the Software are specified and limited solely to those rights expressly identified in this Agreement. Licensor retains all rights not expressly granted to Licensee in this Agreement. Any copy of the Software and Documentation authorized hereunder must be used solely for backup or archival purposes and must contain the same proprietary notices that appear on and in the Software and Documentation. This Agreement governs any updates, upgrades, releases, revisions, or enhancements to the Software that the Licensor may furnish to the Licensee. This Agreement does not include a grant to Licensee of any: (a) ownership right, title, interest, security interest, or other interest in the source code or Object Code of the Software or in Licensor’s Intellectual Property Rights; (b) Intellectual Property Rights relating to the Software, any copy of any part of the Software, or the Documentation; (c) right or authority to modify the Software; (d) right to use the Software to develop derivatives or derivative works of the Software; (e) right to reverse engineer, decompile, or recompile the Software or otherwise attempt to discover source code or trade secrets related to the Software; (f) right to copy the Software, except as expressly permitted elsewhere in this Agreement; (g) right to copy, sublicense, sell, lend, rent, lease, give, transfer, assign, or otherwise dispose of all or any portion of the Software or any interest in the Software without Licensor’s prior written consent (any such disposition made without such consent shall be null and void); and/or (h) right to remove, obscure or alter any notice of patent, copyright, trade secret, trademark, or other proprietary right of Licensor.
Section 3 Grant of License. Licensee’s Designated Technician is granted a revocable, non-exclusive, non-transferable license during the Subscription Period, subject to timely payment to Licensor of all applicable Subscription Fees to: (a) use the Software strictly in accordance with the terms of this Agreement; and (b) copy the Software for Archival Use only, provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced on such archival copy, and provided further that the archival copy is not used unless the original copy of the Software becomes inoperable or fails to function properly. Licensee understands and agrees that all functionality of the Software will time out and cease to operate at the end of the subscription period. In the event that the Software times out and ceases to operate, Licensor shall have no responsibility to provide service or support for the Software.
Section 4 License Restrictions. The authorized use of the Software by the Designated Technician is solely limited to use of the Original Copy of the Software directly from the USB flash media. This Agreement does not authorize any installation or copying of the Software, except with respect to a copy made for Archival Use as authorized under Section 3. Licensee and the Designated Technician will not, directly or through any parent, subsidiary, affiliate, agent or third party, do any of the following with respect to the Software or Documentation:
4.1. Use the Software or Documentation in violation of the terms of this Agreement;
4.2. Copy the Software or Documentation except as specifically authorized by this Agreement;
4.3. Permit concurrent use of any copy of the Software;
4.4. Sell, lease, license, sublicense or otherwise deal with any portion of the Software or Documentation;
4.5. Provide, lend, disclose, divulge or make available to, or permit use of the Software or Documentation by persons other than the Licensee’s Designated Technician without Licensor’s prior written consent;
4.6. Rent, lease, grant a security interest in, or otherwise transfer rights to, or possession of, the Software or any copy thereof;
4.7. Use the Software in any service bureau or time sharing arrangement;
4.8. Remove or alter any proprietary notices, labels or legends on any copy of the Software or Documentation;
4.9. Ship or transmit (directly or indirectly) any copies of the Software or Documentation to any country or destination prohibited by the United States Government; and
4.10. Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from, employ or manipulate the Software.
Section 5 Subscription Fee.
5.1. Subscription Fee. In consideration for the rights granted in Section 3 of this Agreement, Licensee agrees to pay the applicable Subscription Fee whether paid directly to Licensor or to Licensor’s authorized reseller or distributor. The Subscription Fee in effect will be available at Licensor’s website or at websites of Licensor’s authorized resellers and distributors.
5.2. Subscription Renewal. The Licensee is entitled to renew its subscription to the Software by payment of the applicable Subscription Fee corresponding to the Subscription Period desired by Licensee. Licensee understands that the functionality of the Software will time out and fully cease at the conclusion of the last day of the Subscription Period. Licensee may secure continued use of the Software by timely paying the Renewal Subscription fee for the Subscription Period for which Licensee desires to renew the license.
Section 6 Appointment of Designated Technician.
6.1. Licensee’s rights under this Agreement are subject to Licensee’s appointment of a Designated Technician. At Licensor’s request, Licensee will provide the name of the Designated Technician to Licensor.
6.2. In the event that the Designated Technician becomes permanently unavailable to serve as Licensee’s Designated Technician, Licensee may appoint a replacement Designated Technician within ten (10) days after the occurrence of the unavailability. To qualify as a replacement Designated Technician, the replacement Designated Technician must be an employee of the Licensee.
6.3. In the event a Designated Technician becomes unavailable for a period of fourteen (14) to ninety (90) days, Licensee may appoint a temporary Designated Technician, who shall be authorized to serve under this Agreement until the Designated Technician is again available. To qualify as a temporary Designated Technician, the temporary Designated Technician must be an employee of the Licensee.
6.4. For Trial, Monthly, and Quarterly Subscriptions, Licensee may appoint only one (1) temporary Designated Technician or replacement Designated Technician during the Subscription Period. For Annual Subscriptions, Licensee may appoint no more than two (2) temporary Designated Technicians or replacement Designated Technicians during the Subscription Period.
6.5. In the event that Licensee appoints a temporary Designated Technician or a replacement Designated Technician, Licensee shall notify Licensor of the name of the temporary or replacement Designated Technician within five (5) days of such appointment.
Section 7 Support. Licensee is entitled to participate in Licensor’s support program in consideration for its payment of the Subscription Fee. Licensor’s support program includes the following options, all of which can be accessed and used by Licensee:
7.1. Licensor’s on-line support system;
7.2. Licensor moderated user forum; and
7.3. Licensor’s Knowledge Base, which is a question and answer resource including frequently asked questions.
7.4. In the event Licensee’s support inquiry cannot be resolved under options 7.1 through 7.3, Licensee may consult with a Licensor Technical Support Specialist, based on their reasonable available and/or by appointment.
Section 8 Termination. This Agreement is effective until terminated as permitted in this Section. Licensee may terminate this License for convenience at any time. Licensor may terminate this License effective immediately by providing a notice to Licensee of breach of any provision in Sections 3, 4, 5 and 6. Licensor may terminate this Agreement on twenty (20) days written notice to Licensee if Licensee breaches any other provision of this Agreement and fails to cure such breach within twenty (20) days after receiving written notice of the breach from Licensor. Upon termination of this License, Licensee must cease all use of the Software and Documentation, return the USB flash media containing the Original Copy, and destroy all copies of the Software and Documentation. On termination, Licensee shall not be entitled to a refund of any portion of the Subscription Fee.
Section 9 Limited Warranty, Exclusive Remedy. Licensor warrants that, for the lesser of (a) the Subscription Period or (b) sixty (60) days after the date Licensee first acquired the Software from Licensor or its reseller, distributor or authorized representative (collectively, the “Warranty Period”), that (a) the Software will perform substantially in accordance with its accompanying User Guide; and (b) the media on which the Software is provided will be free from defects in materials and workmanship under normal use. This warranty gives Licensee specific rights and Licensee may also have other rights that vary from state to state. In the event of any breach of this limited warranty, Licensee’s sole and exclusive remedy against Licensor and its agents, employees, representatives, officers, directors, contractors, dealers, and distributors is, at Licensor’s option, either (a) return of the Subscription Fee paid by Licensee on a pro rata basis for the unused term of the Subscription; or (b) replacement of the defective media on which the Software is contained, provided that Licensee notifies Licensor of the nonconformance within the Warranty Period. Licensee must return the defective media to Licensor or its dealer, distributor or authorized representative at Licensee’s expense, together with a copy of Licensee’s proof of payment of the license fee within the Warranty Period. This limited warranty is void if the defect is the result of alteration, abuse, damage or misapplication. Any replacement media will be warranted for the remainder of the original Warranty Period, or thirty (30) days, whichever is longer.
Section 10 Disclaimer of Warranties. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT IT'S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AND LICENSED "AS IS" AND WITH ALL FAULTS. THERE ARE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, OR OTHERWISE, REGARDING THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS DEALERS, DISTRIBUTORS AND AUTHORIZED REPRESENTATIVES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. ALSO, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THERE IS NO WARRANTY, DUTY, OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH LICENSEE. IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO THIRTY (30) DAYS FROM THE DATE LICENSEE ACQUIRED THE SOFTWARE FROM LICENSOR OR ITS DEALER, DISTRIBUTOR OR AUTHORIZED REPRESENTATIVE AND IS SUBJECT TO THE EXCLUSIVE REMEDY PROVISION SET FORTH IN SECTION 9. SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING THIRTY (30) DAY TIME LIMITATION ON IMPLIED WARRANTIES MAY NOT APPLY TO LICENSEE. THE LIMITED WARRANTY HEREIN GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY BY JURISDICTION. WARRANTY INQUIRIES MAY BE SENT TO LICENSOR AT: LEGAL@STORAGECRAFT.COM OR TO LEGAL DEPARTMENT, 121 WEST ELECTION ROAD, SUITE 110, DRAPER, UTAH 84020, U.S.A. NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES OR LIMITATIONS WILL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.
Section 11 Limitation of Liability. THE LIABILITY OF LICENSOR AND THAT OF ITS DEALERS, DISTRIBUTORS AND AUTHORIZED REPRESENTATIVES TO LICENSEE FOR ANY LOSSES SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE SUBSCRIPTION FEE AND IN NO EVENT SHALL LICENSOR OR ITS DEALERS, DISTRIBUTORS OR AUTHORIZED REPRESENTATIVES BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF LICENSOR OR ITS AGENTS OR REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These limitations apply even in the event of fault, tort, negligence, misrepresentation, or strict or product liability. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee. Licensee releases Licensor from all liability in excess of the liabilities that are limited by this Section, including without limitation any claim for indemnification or contribution whether arising under statutory or common law or otherwise. End users in certain countries (such as Malaysia, New Zealand, and Australia) may be subject to certain consumer protection laws unique to their locale and that limit the ability to modify or exclude liability. If Licensee acquired the Software for the purposes of a business, Licensee confirms that any applicable consumer protection laws do not apply. If Licensee acquired the Software in Australia and if Licensor breaches a condition or warranty implied by applicable law and which cannot lawfully be modified or excluded by this Agreement then, to the extent permitted by law, Licensor’s liability to Licensee is limited, at Licensor’s option, to: (a) replacement or repair of the Software and/or re-supply of customer support; or (b) the cost of replacing or repairing the Software and/or the cost of re-supplying customer support.
Section 12 United States Government Restricted Rights. RESTRICTED RIGHTS LEGEND. All Licensor products and documentation are commercial in nature. The software and software documentation are "Commercial Items", as that term is defined in 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are defined in 48 C.F.R. § 252.227-7014(a)(5) and 48 C.F.R. § 252.227-7014(a)(1), and used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212, 48 C.F.R. § 252.227-7015, 48 C.F.R. § 227.7202 through 227.7202-4, 48 C.F.R. § 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, Licensor's Software and Documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.
Section 13 Compliance with Export Law. The Software is subject to export controls by the U.S. Department of Commerce (DOC), under the Export Administration Regulations (“EAR”) (see http://www.access.gpo.gov/bis/index.html). Violation of U.S. law is strictly prohibited. Licensee agrees to comply with the requirements of the EAR and all applicable international, national, state, regional and local laws and regulations, including any applicable import and use restrictions. Licensor products are currently prohibited for export or re-export to certain countries subject to U.S. trade sanctions. Licensee agrees not to export, or re-export, directly or indirectly, any product to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State’s Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. Furthermore, Licensee agrees not to export, or re-export, Licensor products to any military entity not approved under the EAR, or to any other person or entity for any military purpose, nor will Licensee sell any Licensor product for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.
Section 14 Assignment and Transfer of License Rights. Licensee may transfer the rights granted under this Agreement on a permanent basis to another person or entity, provided that Licensee retains no copies of the Software and the transferee agrees, in writing, prior to such transfer, to the terms of this Agreement. Any other attempt by Licensee to transfer the rights or obligations under this Agreement will be null and void and will constitute a material breach of this Agreement.
Section 15 Notices. All notices between the Parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified or registered mail (return receipt requested) or electronic facsimile to the addresses set forth as follows, and shall be deemed effective upon receipt:
If to Licensor to: Legal Department
StorageCraft Technology Corporation
121 West Election Road, Suite 110
Draper, UT 84020
If to Licensee to: To the last known address provided by Licensee to Licensor.
Section 16 Microsoft® Windows® Preinstallation Environment License (“WinPE”). Licensor is a licensee under a license granted by Microsoft with respect to Microsoft Windows Preinstallation Environment software, including versions 2005 and 2.0. Licensee accepts the following terms and conditions concerning WinPE:
16.1. The Software is limited to use as a boot, diagnostic, disaster recovery, set up, restoration, emergency services, installation, test/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 products.
16.2. THE SOFTWARE contains WinPE, which includes a security feature that will cause the computer system to reboot without prior notification to the licensee after twenty-four (24) hours of continuous use. THIS TIME-OUT FEATURE WILL RESET EACH TIME THE COMPONENT CONTAINING winpe IS RELAUNCHED.
16.3. Any and all Microsoft and Microsoft affiliate’s liability related to the Software are disclaimed in full and without condition.
16.4. All customer support issues will be handled solely by Licensor.
16.5. Licensee is specifically prohibited from reverse engineering, decompiling, or disassembling WinPE, except to the extent expressly permitted by applicable law.
16.6. Licensee is specifically informed that the Software is subject to U.S. export jurisdiction.
16.7. In the event that Licensee’s breach of this Agreement places Licensor in breach of its license agreement with Microsoft, Licensee agrees to indemnify and hold Licensor harmless from any such breach, notwithstanding the limitations on liability imposed elsewhere in this Agreement.
Section 17 Network Configuration Utility. The Software includes the Network Configuration Utility based on a derivative created by Licensor under a license granted by Pierre Mounir (The Truth), a proprietary software product copyrighted © 2003-2004 with all rights reserved.
Section 18 Miscellaneous.
18.1. Activation. The Documentation describes the process of activating the Software, which involves recognition of each seat of licensed Software by Licensor’s activation server. The records of Licensor’s activation server are determinative in any question concerning whether a seat of licensed Software has been activated by Licensee.
18.2. Severability. If any provision of this Agreement is unenforceable or invalid pursuant to any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such unenforceable or invalid provision will be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
18.3. Entire Agreement. Unless Licensee has entered into a separate, written and signed agreement with Licensor or one of its dealers, distributors, resellers, or authorized representatives for the supply of the Software (including without limitation a managed service provider agreement), this Agreement is the complete and exclusive statement of the agreement between Licensor and Licensee concerning the Software and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties.
18.4. No Waiver or Modification. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Licensor. No delay or failure to take action represents a waiver of the rights inherent to or granted to Licensor under this Agreement.
18.5. No Third Party Beneficiary. No third party is or shall be a beneficiary of this Agreement and no third party shall have the right to enforce this Agreement.
18.6. Assignment. This Agreement is personal to Licensee and may not be assigned or assumed (including by operation of law) without Licensor’s prior written consent. A change of control of Licensee shall constitute an assignment.
18.7. Compliance. For Software licensed for business or commercial purposes, during the period this Agreement remains in effect, and for three years thereafter, Licensor may verify Licensee’s compliance with this Agreement on its premises during its normal business hours and in a manner that minimizes disruption to Licensee’s business. Licensor may use an independent auditor for this purpose with Licensee’s prior approval, which Licensee will not unreasonably withhold.
18.8. Headings and Captions. The headings and captions used in this Agreement are for convenience or reference only and shall not modify, expand, limit, or describe the scope or intent of this Agreement or in any other way affect the terms or conditions of this Agreement.
18.9. Force Majeure. No delay, failure or default in performance of any obligation of Licensor hereunder shall constitute a breach of the Agreement to the extent caused by a force majeure.
18.10.Applicable Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah, U.S.A., without application of any choice-of-law or conflict-of-law principles, rules, or provision that would result in the application of the laws of any jurisdiction other than Utah. Any action for provisional relief concerning this Agreement or the Parties’ relationship hereunder, including but not limited to a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure, shall be brought in Salt Lake County, State of Utah, U.S.A. The Parties consent and submit to the exclusive jurisdiction of the state or federal courts in Salt Lake County, State of Utah, U.S.A., for purposes of any action for such provisional remedy or interim or conservatory measure. The United Nations Convention on Contracts for the International Sale of goods does not apply to this Agreement.
18.11.Dispute Resolution. Any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement, including, without limitation, any dispute regarding its validity or termination or the performance or breach hereof but excluding any claim for violation of copyright, trademark, or other intellectual property rights, shall be submitted for final resolution by arbitration administered by the American Arbitration Association (the “AAA”). If Licensee is a U.S. resident or maintains a place of business in the U.S., the arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules in effect at the time of the arbitration, except as they may be modified by agreement of the Parties. If Licensee is not a U.S. resident and/or does not maintain a place of business in the U.S., the arbitration shall be conducted in accordance with the AAA International Arbitration Rules in effect at the time of the arbitration, except as they may be modified herein or by agreement of the Parties. The arbitration shall be conducted by two arbitrators selected from the AAA roster of neutrals, and the place of arbitration shall be Salt Lake County, State of Utah, U.S.A., unless otherwise agreed by the Parties. The proceedings shall be conducted in the English language. Each of the two arbitrators must be fluent in the English language and must be an attorney with experience in software licensing transactions. In the event of an arbitration conducted under the International Arbitration Rules, the arbitrators must also have experience in international business transactions. Any award rendered by the arbitrators shall be final and binding on the Parties hereto and may be challenged in a court of competent jurisdiction only upon those grounds allowed under the Utah Uniform Arbitration Act, Utah Code Ann. section 78B-11-101 et seq. In the absence of challenge, judgment on the award may be entered in any court of competent jurisdiction. Without limiting the authority conferred on the arbitral tribunal by this Agreement and the Rules, such tribunal shall have the authority to exercise equitable principles and award equitable remedies. By agreeing to Arbitration, the Parties hereto do not intend to deprive any court of competent jurisdiction in Salt Lake County, State of Utah, U.S.A., of its ability to issue any form of provisional remedy, including but not limited to a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure. A request for such provisional remedy or interim or conservatory measure by a Party to a court shall not be deemed a waiver of an agreement to arbitrate.
18.12.Customer Contact. If Licensee has any questions concerning this License, Licensee may contact Licensor as follows: website - www.storagecraft.com; telephone – 801-545-4700; fax - 801-545-4705; mail – StorageCraft Technology Corporation, 121 West Election Road, Suite 110, Draper, Utah 84020, U.S.A.
Version: June 2009
© Copyright 2006-2009 StorageCraft Technology Corporation. All Rights Reserved. This Software and Documentation are the copyrighted property of StorageCraft Technology Corporation and all rights in and to ShadowProtect IT are exclusively reserved to and owned by StorageCraft Technology Corporation. StorageCraft, ShadowProtect, ShadowProtect IT, and their respective logos and trademarks are owned exclusively by StorageCraft Technology Corporation in the United States and elsewhere. Microsoft and Windows are registered trademarks of Microsoft Corporation. Windows Preinstallation Environment and WinPE are or may be trademarks of Microsoft Corporation. This Software may include a derivative software application of PE Network Configurator authorized by license granted by Pierre Mounir (The Truth). All other brands and product names referenced in this Agreement are or may be the trademarks or registered trademarks of their respective owners.
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