» version build 11133 - posted on 2009-07-07
EULA - End User License Agreement
End User License Agreement (EULA)
BEFORE INSTALLING AND USING THE SOFTWARE PRODUCT WHICH EITHER YOU HAVE DOWNLOADED OR IS CONTAINED ON THESE DISKS (SOFTWARE) YOU SHOULD CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT (AGREEMENT) THAT APPLIES TO THE SOFTWARE. CLICK ACCEPT IF YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. OTHERWISE, CLICK DO NOT ACCEPT. CLICKING ACCEPT OR OTHERWISE DOWNLOADING, INSTALLING AND OR USING THE SOFTWARE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE (THE "LICENSEE") AND ACRONIS INC. LOCATED AT: ACRONIS INTERNATIONAL GMBH VERWALTUNG EURO HAUS RHEINWEG 5 SCHAFFHAUSEN, SWITZERLAND 8200, ("LICENSOR"). IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NOT RIGHT TO DOWNLOAD, INSTALL AND/OR USE THE SOFTWARE AND MUST DELETE THE SOFTWARE AND ASSOCIATED FILES IMMEDIATELY.
This Agreement applies to the Software, whether licensed under a Software License and/or an Evaluation License, each as defined and described below:
Purchased License of Software. Subject to the terms and conditions of this Agreement, upon purchase of a license to the Software, LICENSOR grants and LICENSEE accepts a nonexclusive, nontransferable, nonassignable license to use Software only for LICENSEE's own internal use solely on the specific number of Hardware (as defined below) licensed owned, leased or otherwise controlled by LICENSEE. LICENSEE may make one copy of Software only for archival purposes, only in machine readable form, provided that such archival copy is only used for archival purposes and never in a production environment and is marked with every notice on the original Installation of Software is LICENSEE's responsibility. The license described in this section shall be referred to as a Software License).
Evaluation License of Software: The LICENSEE has the right to evaluate the Software for the evaluation period which can be found at http://www.acronis.com/enterprise/download/ (the Evaluation Period') unless extended by LICENSOR. Software licensed under this Evaluation License may not be used in a production environment. There will be no charge to the LICENSEE for said evaluation of the Software under this Evaluation License. At the conclusion of the Evaluation Period, unless a Software License to the Software is purchased, the LICENSEE will delete the Software from its systems and have no further license or other rights with respect to the Software except as to the rights and responsibilities in this Agreement. LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF SOFTWARE UNDER THE EVALUATION LICENSE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The following sections of this Agreement also apply to Evaluation License(s) of the Software: Limitations, Confidentiality, Disclaimer of Warranties, LICENSEE Indemnity, Law, Export Restrictions, and Miscellaneous. The license described in this section shall be referred to as an Evaluation License).
Assigning the License. Before you run any instance of the Software under a Software License, you must assign that license to one of your PCs or Servers (depending upon the license you have purchased or are evaluating and such purchase or evaluation is based upon the operating system on which that hardware operates, such PCs or Servers shall be referred to as the Hardware). That Hardware is the licensed Hardware for that particular Software license. You may assign other Software Licenses to the same Hardware, but you may not assign the same Software License to more than one Hardware except as identified herein.
You may reassign a Software License if you retire the licensed Hardware due to permanent Hardware failure. If you reassign a Software License, the Hardware to which you reassign the license becomes the new licensed Hardware for that particular Software License.
Running Instances of the Hardware Software. You have the rights to run the Software on one piece of Hardware as defined above. Every Hardware creating an image and every Hardware to which an image is either deployed to or restored from must have a valid license. In the case of Universal Deploy or Universal Restore, every time an image is deployed or restored (as appropriate to either Universal Restore or Universal Deploy), to Hardware that is dissimilar to the Hardware from which the image was originally created, a valid license of the Universal Deploy or Universal Restore is required.
You have the rights below for each Software License you assign:
Standard Software license. A standard Software License is the general license that is available to LICENSEE. Unless the Advanced Server or Virtual Edition Software is purchased (as further set forth below), you have purchased the standard Software License and may run on the licensed Hardware, at any one time as follows:
One (1) instance of the Hardware installed Software in one physical operating system environment;
Advanced Server Edition. Advanced Server Edition (as identified by the product name (for example, Acronis Backup Recovery 10 Advanced Server)) is licensed by physical Hardware. You may run the Software on the licensed Hardware, at any one time, as follows:
One (1) instance of the Hardware installed Software in one physical operating system environment; and
Up to four (4) instances of the Hardware installed Software in virtual operating system environments (only one (1) instance per virtual operating system environment).
If you run all five (5) permitted instances at the same time, the instance of the Hardware installed Software running in the physical operating system environment may be used only to run hardware virtualization software and to manage and service operating system environments on the licensed Hardware.
Virtual Edition. Virtual Edition (as identified by the product name (for example, True Image Virtual Edition)) is licensed by physical Hardware. You may run on the licensed Hardware, at any one time as follows:
One instance of the Software in one physical operating system environment; and
A maximum of 99 instances of the Software in virtual operating system environments.
The Virtual Edition license allows migration of unlimited number of physical servers to the host server for Virtual Machines. Migrations from physical to virtual and from virtual to physical should use the functionality of the bootable media for migration.
Support. If LICENSEE is under a current support contract with LICENSOR with respect to the Software and is current in paying all amounts due thereunder, LICENSOR shall make available to LICENSEE support consistent with the level of service purchased. Support shall consist of: (i) supplying telephone or other electronic support, as determined by LICENSOR in its sole discretion, to LICENSEE in order to help LICENSEE locate and, on its own, correct problems with the Software and (ii) supplying all extensions, enhancements and other changes that LICENSOR, at its sole discretion, makes or adds to the Software and which LICENSOR makes generally available, without additional charge, to other licensees of the Software that are enrolled in Support. Upon mutual written agreement by both parties, LICENSOR may, but shall not be required to: (i) supply code corrections to LICENSEE to correct Software malfunctions in order to bring such Software into substantial conformity with the published operating specifications for the most current version of the Software unless LICENSEE's unauthorized modifications prohibit or hamper such corrections or cause the malfunction; or (ii) supply code corrections to correct insubstantial problems at the next general release of the Software.
Support policies are subject to change. Proof of legal ownership and/or registration is required to obtain support.
Limitations. Notwithstanding any references to purchase, the Software is licensed and not sold pursuant to this Agreement. This Agreement confers a limited license to the Software and does not constitute a transfer of title to or sale of all or a portion of the Software, and LICENSOR retains ownership of all copies of the Software. LICENSEE acknowledges that the Software contain trade secrets of LICENSOR, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, LICENSEE shall have no right, and LICENSEE specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity, or use the Software on ay equipment other than the Hardware, and LICENSEE acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of LICENSEE; or (v) disclose, provide, or otherwise make available trade secrets contained within the Software in any form to any third party without the prior written consent of LICENSOR.
Confidentiality. The Software is a trade secret of LICENSOR and is proprietary to LICENSOR. LICENSEE shall maintain Software in confidence and prevent disclosure of Software using at least the same degree of care it uses for its own similar proprietary information, but in no event less than a reasonable degree of care. LICENSEE shall not disclose Software or any part thereof to anyone for any purpose, other than to employees for the purpose of exercising the rights expressly granted under this Agreement. License shall not, and shall not allow any third party to, decompile, disassemble or otherwise, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of Software or of any files contained or generated using Software by any means whatsoever. The obligations under this paragraph shall survive any termination of the Agreement.
Disclaimer of Warranties. THE SOFTWARE IS PROVIDED AS IS AND LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED WITH RESPECT TO SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR A PARTICULAR USE. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SOFTWARE WILL OPERATE IN THE COMBINATION LICENSEE SELECTS, THAT OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE AND/OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
Liability Limitations. LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY. LICENSOR'S CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID BY THE LICENSEE FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
LICENSEE Indemnity. LICENSEE agrees to indemnify and defend LICENSOR, and hold it harmless from all costs, including attorney's fees, arising from any claim that may be made against LICENSOR by any third party as a direct or indirect result of any use by LICENSEE of the Software,
Termination. This Agreement and the license may be terminated without fee reduction (i) by LICENSEE without cause on thirty (30) days notice; (ii) by LICENSOR, in addition to other remedies, if LICENSEE is in default and fails to cure within ten (10) days following notice; (iii) on notice by either party hereto if the other party ceases to do business in the normal course, becomes insolvent, or becomes subject to any bankruptcy, insolvency, or equivalent proceedings. Upon termination for any reason, LICENSEE shall immediately return Software and all copies to LICENSOR and delete all Software and all copies from the Hardware.
Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its conflicts of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and any suit under this Agreement shall exclusively be brought in a federal or state court in Massachusetts. Any action against LICENSOR under this Agreement must be commenced within one year after such cause of action accrues.
Government End Users. This provision applies to all Software acquired directly or indirectly by or on behalf of the United States Government. The Software is a commercial product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any U.S. Government funds. If the Software is supplied to the Department of Defense, the U.S. Government acquires only the license rights customarily provided to the public and specified in this Agreement. If the Software is supplied to any unit or agency of the U.S. Government other than the Department of Defense, the license to the U.S. Government is granted only with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c) of the Commercial Computer Software Restricted Rights clause of FAR 52.227-19.
Export Restriction. LICENSEE will not remove or export from the United States or the country originally shipped to by LICENSOR (or re-export from anywhere) any part of the Software or any direct product thereof except in compliance with applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.
Miscellaneous. This Agreement contains the entire understanding of the parties and supersedes all other agreements, oral or written, including purchase orders submitted by LICENSEE, with respect to the subject matter covered in this Agreement The delay or failure of either party to exercise any right provided in the Agreement shall not be deemed a waiver. All notices must be in writing and shall be delivered by hand (effective when received) or mailed by registered or certified mail (effective on the third day following the date of mailing). The notices addressed to LICENSOR shall be sent to its address set out above. If any provision is held invalid, all others shall remain in force. LICENSEE may not assign, pledge, or otherwise transfer this agreement, nor any rights or obligations hereunder in whole or in part to any entity. Paragraph headings are for convenience and shall have no effect on interpretation. In the event that it is necessary to undertake legal action to collect any amounts payable or to protect or to defend against the unauthorized use, disclosure, distribution, of the Software hereunder and/or other violation of this Agreement, LICENSOR shall be entitled to recover its costs and expenses including, without limitation, reasonable attorneys' fees.