THIS IS A BINDING CONTRACT. PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING THIS SOFTWARE AND CLICKING “PURCHASE”, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE PROMPTLY EXIT THIS AGREEMENT WITHOUT TRYING TO INSTALL THE SOFTWARE.
ASIGRA has conceived, designed and developed an automatic, unattended backup/restore data storage management technology known as “ASIGRA Cloud Backup” and now wishes to grant You the right to use the ASIGRA Cloud Backup technology on the terms and conditions contained herein.
In consideration of the mutual covenants contained herein and for other good and valuable consideration, the parties hereby agree as follows:
In this Agreement all capitalized terms have the meanings set out below:
“Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean this Software License Agreement;
“Annual Maintenance Services” means those bug fixes, patches and updates to the latest version of DS-Software provided by ASIGRA to You as further described in ASIGRA’s Annual Maintenance and Support Services Plan;
“Annual Maintenance and Support Services Plan” means the description of ASIGRA’s Annual Maintenance Services, Annual Support Services, Annual Upgrade Subscription and related corrective services provided by ASIGRA, as such plan may be amended from time to time;
“Annual Support Services” means the web, telephone and email support available to You as further described in ASIGRA’s Annual Maintenance and Support Services Plan;
“ASIGRA Intellectual Property” means the Confidential Information, and any trade secrets, copyrights, inventions, works, Trade-marks, logos, designs, commercial symbols, insignia, domain names, materials (including but not limited to User Documentation, books, pamphlets, manuals, questionnaires, checklists, bulletins, bulletins, business processes and best practices, presentation templates, training materials, memoranda, videos, tapes, charts, letters, notices or other publications or documents prepared by ASIGRA as may be modified from time to time) developed, owned, or provided by ASIGRA in connection with ASIGRA Cloud Backup Services;
“ASIGRA SP Agreement” means either (i) the ASIGRA Cloud Backup Software Service Provider Term License Agreement; (ii) the legacy ASIGRA Cloud Backup Software Service Provider Agreement; or (iii) the Asigra Cloud Services Broker Agreement, as applicable;
“ASIGRA Cloud Backup Services” means ASIGRA’s proprietary backup/restore data storage management solution, including the DS-License Server Software, DS-System Software, DS-Operator Software, DS-Client Software, DS-User Software and Tools, as modified from time to time;
“Business Information” means all financial and business information and data of You or ASIGRA and Your/Asigra’s respective customers, if any; products and services supplied by You or ASIGRA; business and marketing plans and strategies of Your or ASIGRA; and studies, customer lists, charts, plans, training materials, tables and compilations of business and industry information acquired or prepared by or on behalf of You or ASIGRA;
“Computer Technology” includes the DS-Software and the User Documentation and means all scientific and technical information or material pertaining to any machine, appliance or process, involving the use of computers or digital processors including specifications, proposals, models, designs, formulae, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show-how of ASIGRA;
“Confidential Information” means the provisions of this Agreement and all Your information or ASIGRA’s information contained in any form whatsoever that is not generally available to or used by third parties, that is acquired or developed by or on behalf of ASIGRA or You from time to time and that is disclosed or made available by a party to the other party under this Agreement and includes all Business Information and Computer Technology;
“Customer” means, as applicable, the firm, corporation or other legal entity that (i) uses ASIGRA Cloud Backup Services for its own internal use and makes available such ASIGRA Cloud Backup Services to its own internal Customer End-Users; or (ii) is an authorized service provider or Cloud Broker of ASIGRA Cloud Backup Services and makes available such ASIGRA Cloud Backup Services to external Customer End-Users, as applicable, and includes any third party installing any of the DS-Software on behalf of Customer;
“Customer End-User” means, as applicable, the ultimate end-user of ASIGRA Cloud Backup Services, being (i) employees and contractors of Customer; or (ii) customers of Customer (including customers’ employees and contractors) that are authorized to use the DS-Client Software and the DS-User Software or any other DS-Software as described in this Agreement, including all of the restrictions for use of the DS-Software;
“Customer Vault System” means the combination and integration of third-party hardware not provided by ASIGRA and third party software where Customer’s and/or Customer End-Users’ data is stored, located at Customer’s secure off-site and/or on-site location under the control of Customer or otherwise hosted by a third party cloud provider;
“Derivative Work” means any work that is based upon one or more pre-existing works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such pre-existing works may be recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright in such pre-existing work, would constitute a copyright infringement, including any compilation that incorporates such pre-existing work, and Derivative Work includes any work that contains any element contained in the DS-Software;
“Disclosing Party” means a party that discloses Confidential Information to a Receiving Party hereunder;
“DS-Client Software” means ASIGRA’s proprietary software, designed to perform unattended and demand backups and selective restoration of Your specified files whether located on a mobile device, tablet, third party public or private cloud or otherwise designed to run as a service on a PC / server / mobile device / tablet / third party public or private cloud machine connected to the Customer’s LAN and to the Customer End-User’s server(s), serving as a gateway to the SP-Vault System;
“DS-License Server Software” means the application software either licensed by ASIGRA to Customer that is installed on Customer’s own server/hardware to measure capacity and manage Customer’s licenses/instances of DS-Software or that is managed directly by ASIGRA on Customer’s behalf;
“DS-Operator Software” means the application software licensed by Customer from ASIGRA that provides ASIGRA Cloud Backup Services hereunder which runs locally on the Customer Vault System or on a remote computer and is used to administer and monitor Customer Vault System activity, as well as to generate reports, invoices and credits for ASIGRA, Customers and/or the Customer End-Users, as applicable;
“DS-Software” means, collectively, all proprietary software developed by ASIGRA for use with the ASIGRA Cloud Backup Services, including DS-User Software, DS-Client Software, DS-Operator Software, DS-System Software, BLM, DS-NOC, DS-License Server, DS-Replication, Recovery Tracker, Local-Only Storage, Tools and DS-Key software, as such DS-Software may be upgraded by ASIGRA from time to time;
“DS-System Software” means the application software developed by ASIGRA and licensed to Customer hereunder that connects to the DS-License Server Software and runs as a service on the Customer Vault System enabling Customer to provide and use ASIGRA Cloud Backup Services;
“DS-User Software” means the application software designed to run locally on the Customer End-Users’ workstations or on a remote computer that is used to specify the files on the LAN designated for backup/restore that is made directly available by ASIGRA to Customer End-Users;
“Effective Date” means the date this Agreement takes legal effect, being the date You, or Your authorized agent acting on Your behalf, clicks “I Accept”;
“Laws” means all statutes, codes, ordinances, decrees, rules, regulations, municipal-by-laws, orders, decisions, rulings or awards, policies, voluntary restraints, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the party referred to in the context of which such word is used and “Law” means any one of the foregoing;
“License Fee” means those fees payable by You for the license grants of the DS-Software as described hereunder;
“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative at http://opensource.org/) or the Free Software Foundation Definition (as promulgated by the Free Software Foundation at http://www.fsf.org/);
“Open Source Software” means any software subject to an Open Source License;
“Receiving Party” means a party that receives Confidential Information from a Disclosing Party hereunder;
“Reseller” means ASIGRA’s authorized reseller of the DS-Software that is empowered by ASIGRA to provide SPR Support and additional services for Customer;
“SPR Services Agreement” means (i) the Customer agreement to provide Customer services that incorporates ASIGRA Cloud Backup Services and related services to Customer End-Users as required by such Customer End-Users; or (ii) the agreement between Reseller and Customer that describes additional services to be performed by Reseller as required by Customer and its Customer End-Users, as applicable;
“SPR Support” means (A) the first and second level maintenance and support, as applicable, to be provided by (i) Customer to Customer End-Users internally; (ii) Customer, if Customer is a service provider, to Customer-End Users externally; (iii) Resellers to Customer and Customer End-Users, as applicable; or (B) first level maintenance and support, to be provided by Customer, if Customer is a Cloud Broker, to Customer-End Users externally;
“Term” has the meaning set out in Section 7.1;
“Termination Date” has the meaning set out in Section 8.1;
“Tools” means the application software developed by ASIGRA and optionally licensed by Customer which enables Customer to provide additional functionality and services;
“Third Party Software” means software owned by a legal or natural person not a party to this Agreement (other than Open Source Software) that is contained in the DS-Software;
“Trade-marks” means the trade-marks of ASIGRA, namely ASIGRA Cloud Backup, DS-Client Software, DS-System Software, DS- Operator Software and the ASIGRA logo;
“User Documentation” means the electronic or hardcopy materials made accessible by ASIGRA which describes the features and operating characteristics of the DS-Software or any part thereof, together with any copies, revisions, modifications or enhancements or other documentation as may be provided from time to time by ASIGRA; and
“Upgrades” means those upgrades of the DS-Software that will be made available directly by ASIGRA or via Reseller to You.
2.1 If You intend (i) to provide ASIGRA Cloud Backup Services as a licensed service provider to Customer End-Users; or (ii) to market ASIGRA Cloud Backup Services as a Reseller or Cloud Broker, then ASIGRA hereby grants to You a non-exclusive, limited license to use the ASIGRA Intellectual Property to provide ASIGRA Cloud Backup to Customer End-Users, as applicable.
2.2 If You intend to provide ASIGRA Cloud Backup Services internally, then ASIGRA hereby grants to You a non-exclusive, limited license to use the ASIGRA Intellectual Property to provide ASIGRA Cloud Backup Services to Your internal Customer End-Users.
2.3 If You are a Customer End-User, then ASIGRA hereby grants to You a non-exclusive, limited license to use the ASIGRA Intellectual Property as required to obtain the benefits of ASIGRA Cloud Backup Services. You are permitted to (i) install and use the DS-Client Software and DS-User Software on its computer or other storage device; or (ii) install and use the DS-Client Software and DS-User Software on a networked file server for the purposes of (a) permanent installation onto hard disks or other storage devices or (b) use of the DS-Client Software and DS-User Software over such network; and (iii) make backup copies of the DS-Client Software and DS-User Software, solely to permit You to obtain ASIGRA Cloud Backup Services.
2.4 In order to receive the licenses granted above, You shall pay ASIGRA, its service provider, Cloud Broker or Reseller, as appropriate, all applicable License Fees and such other fees as set out in the applicable ASIGRA SP Agreement or SPR Services Agreement and in the manner described in such agreement(s).
2.5 ASIGRA retains all rights in the ASIGRA Intellectual Property not specifically granted herein to You.
2.6 ASIGRA is the authorized sublicensor of any Third Party Software that it sublicenses to You with the DS-Software. ASIGRA hereby grants to You a non-exclusive, non- transferable, limited sublicense to use the Third Party Software solely in connection with ASIGRA Cloud Backup Services and for the sole purpose of providing or obtaining access to ASIGRA Cloud Backup Services during the Term of this Agreement. The sublicense granted to You to use the Third Party Software in connection with ASIGRA Cloud Backup Services terminates when this Agreement terminates, in accordance with Section 7.
2.7 Certain components of the DS-Software contains Open Source Software and is covered by Open Source Licenses. Such Open Source Software is licensed to You in accordance with the Open Source License provisions applicable to such licenses. ASIGRA is in compliance with the licensing requirements of any such Open Source Software made available as part of the DS-Software as of the Effective Date.
2.8 Unless You are an authorized service provider, Reseller or Cloud Broker of ASIGRA, You shall not offer, market or otherwise provide ASIGRA Cloud Backup Services to any third parties (other than Customer End-Users) except as described in this Agreement or otherwise permitted by ASIGRA in writing. Customer is not authorized, solely by virtue of this Agreement, to act as a service provider, Cloud Broker or a Reseller.
2.9 The rights and licenses granted to You in this Agreement are personal to You and are not transferable or assignable without prior written consent of ASIGRA. Any attempt to assign this Agreement without the express prior written consent of ASIGRA will be void.
3.1 Other than the Third Party Software and the Open Source Software, ASIGRA owns and exclusively retains all rights and title in, including without limitation, all ASIGRA Intellectual Property Rights, ASIGRA Cloud Backup Services and
DS-Software, all future functionality and product developments if any, which are related to ASIGRA Cloud Backup Services. You obtain no right to modify, duplicate or reverse-engineer any aspect of the ASIGRA Intellectual Property, the DS-Software or ASIGRA Cloud Backup Services except as may be permitted pursuant to an applicable Open Source License.
3.2 You will not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of any DS-Software supplied hereunder, or adapt the DS-Software in any way to create a Derivative Work except as may be permitted pursuant to an applicable Open Source License. You will not, and will not authorize any third party to use, reproduce, sublicense, distribute or dispose of the DS-Software in whole or in part except as may be permitted pursuant to an applicable Open Source License.
3.3 You will use best efforts to protect the copyright and/or any proprietary rights of ASIGRA, including but not limited to any contractual, statutory and common law rights during and after the Term of this Agreement. You will comply with all reasonable requests made by ASIGRA in relation to the protection of its intellectual property rights hereunder.
3.4 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of the DS-Software or any component thereof, or the ASIGRA Intellectual Property (except as may be permitted pursuant to an applicable Open Source License), all profits and proceeds from such unauthorized activity, if any, will accrue to ASIGRA and/or the owners of the Third Party Software and ASIGRA and/or the owners of the Third Party Software will be the owner of same whether or not made in compliance with this Agreement.
3.5 If You become aware of any unauthorized decompilation or infringement of the DS-Software or ASIGRA Cloud Backup Services or any component thereof by any third party (except as may be permitted pursuant to an applicable Open Source License), You will promptly alert ASIGRA of such activity and provide the identity of such third party to ASIGRA. You will provide ASIGRA with all reasonable assistance required by ASIGRA to assert its rights against such third party and to the proceeds of such unauthorized activity, as further described in Section 9.1.
3.6 Other than the owners of the Third Party Software and the Open Source Software, ASIGRA is the sole proprietor of the ASIGRA Intellectual Property and any goodwill which may become associated with the ASIGRA Intellectual Property will automatically vest in ASIGRA. Other than the Open Source Software, You do not acquire any goodwill which may be or may become associated with the ASIGRA Intellectual Property. You will not at any time put into issue or contest, either directly or indirectly, the validity of the ASIGRA Intellectual Property, nor commit any act which interferes with ASIGRA’s registration of same with any local, provincial, state or federal agency.
4.1 ASIGRA will not be liable for any services provided by You, including but not limited to SPR Support, or any services that may be agreed upon by means of the SPR Services Agreement or any other agreement, in writing or otherwise.
5.1 It would be damaging to a Disclosing Party if Confidential Information were disclosed to or obtained by third parties. Accordingly, the Receiving Party will make all commercially reasonable efforts during the Term of this Agreement and thereafter to prevent the Confidential Information from being disclosed to or obtained by any person or entity for any purpose (except to its employees, agents and contractors to the extent necessary to perform hereunder provided such employees, agents and contractors have previously agreed in writing to protect the Confidential Information of a party hereunder to the same extent as described in this Section 5) except as described in this Section 5 without the express written consent of the Disclosing Party. For greater clarity, You may disclose ASIGRA Confidential Information to Your Customer End-Users and prospective Customer End-Users on a need-to-know basis so long as such parties agree to substantially equivalent confidentiality obligations.
5.2 The obligations of confidentiality set out above do not apply to information that: (a) has otherwise become generally known or available to the public (which, for greater clarity, shall not include other ASIGRA Resellers, Hybrid Partners, service providers or other channel partners) without a breach of this Agreement; (b) is obtained by the Receiving Party from a third party who has no obligation of confidentiality to the Disclosing Party; (c) is independently developed or obtained by the Receiving Party without breach of this Agreement; or (d) was known to the Receiving Party before receipt thereof from the Receiving Party.
5.3 It is not a breach of this Section 5 to disclose Confidential Information required to be disclosed by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible.
5.4 The Receiving Party will not copy or reproduce the Confidential Information except as may be required for the performance of its obligations hereunder. All copies will, on reproduction, contain the same proprietary and confidential notices and legends which appear on the original documents and information.
5.5 The Receiving Party, upon the request of the Disclosing Party, will return all of the Confidential Information and copies in its possession to the Disclosing Party or destroy such Confidential Information and copies as directed by the other party and provide to such party a certificate of an officer of the party certifying such destruction.
5.6 The Receiving Party shall indemnify the Disclosing Party for all damages, costs, and expenses (including court costs and legal fees on a solicitor and client basis) incurred by the Disclosing Party as a result of a failure of the Receiving Party to comply with its obligations under this Section 5. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized disclosure, possession, use or knowledge of the Confidential Information which becomes known to an employee, consultant, designee or officer of the Receiving Party.
5.7 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 5 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 5 will result in immediate and irreparable harm and damage to the other party; and (c) in the event of any violation of any provision of this Section 5, the non-breaching party will be entitled to equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.
6.1 ASIGRA hereby covenants, represents and warrants that:
6.1.1 to the knowledge, information and belief of ASIGRA, after having taken commercially reasonable precautions, the DS-Software does not contain any software code that will disable the DS-Software, such as computer viruses, back doors, Trojan horses and the like, and ASIGRA will not insert such disabling code in the DS-Software at any time; and
6.1.2 ASIGRA has all rights to grant the rights and licenses hereunder.
6.2 You hereby covenant, represent and warrant to ASIGRA that:
6.2.1 the natural person who enters into this Agreement by clicking “I Accept” on the last page of this Agreement has the corporate authority and legal right to bind You as described hereunder; and
6.2.2 You will access and use the DS-Software and ASIGRA Cloud Backup Services and the Customer Vault System in accordance with applicable Laws and in such manner as not to violate or infringe any copyright, trade-mark, confidential information or trade secret of any other person.
6.3 THE REPRESENTATIONS AND WARRANTIES IN SECTION 6.1 OF THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF THE DS-SOFTWARE, THE THIRD PARTY SOFTWARE, THE OPEN SOURCE SOFTWARE, THE ASIGRA CLOUD BACKUP SERVICES, THE ANNUAL UPGRADE SUBSCRIPTION, REMOTE DIAGNOSIS SUPPORT, ANNUAL MAINTENANCE SERVICES, ANNUAL SUPPORT SERVICES OR SPR SUPPORT PROVIDED BY ASIGRA, A CUSTOMER OR RESELLER WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASIGRA, ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, RESELLERS OR ITS AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THESE WARRANTIES AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
6.4 NEITHER ASIGRA, NOR ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, RESELLERS OR AGENTS NOR THE OWNERS OF ANY THIRD PARTY SOFTWARE MAKES ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY CUSTOMER OR CUSTOMER END-USERS FROM USE OF THE DS-SOFTWARE, THE THIRD PARTY SOFTWARE, THE OPEN SOURCE SOFTWARE, ASIGRA CLOUD BACKUP SERVICES, THE ANNUAL UPGRADE SUBSCRIPTION, REMOTE DIAGNOSIS SUPPORT, ANNUAL MAINTENANCE SERVICES, ANNUAL SUPPORT SERVICES OR SPR SUPPORT GENERALLY ON ANY THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE AND NEITHER ASIGRA NOR ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS WARRANTS PROPER OPERATION OF THE HARDWARE AND COMMUNICATIONS SOFTWARE AND HARDWARE UTILIZED BY CUSTOMER OR THE CUSTOMER END-USERS. EACH OF ASIGRA AND ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS EXPLICITLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OTHERWISE (INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) IN RESPECT OF SUCH THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE.
6.5 THIS ABOVE DISCLAIMER ALSO APPLIES TO DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, MISDELIVERY OR NON-DELIVERY OR DESTRUCTION THAT CUSTOMER OR CUSTOMER END-USER MAY EXPERIENCE AS A RESULT OF ITS ACCESS OF THE DS-SOFTWARE, THE CUSTOMER VAULT SYSTEM, THE THIRD PARTY SOFTWARE, OR MAINTENANCE AND SUPPORT SERVICES.
6.6 IN NO EVENT WILL ASIGRA, ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES OR AGENTS OR THE OWNERS OF ANY THIRD PARTY SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES OF ANY TYPE (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOST BUSINESS OR LOST SAVINGS) ARISING OUT OF THIS AGREEMENT, WHETHER SUCH DAMAGES OR EXPENSES ARISE OUT OF BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), OR TORT OR ON ANY OTHER STATUTORY OR COMMON LAW BASIS, EVEN IF ASIGRA OR ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.7 IN NO EVENT WILL THE AGGREGATE LIABILITY THAT ASIGRA, ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS, ITS THIRD PARTY LICENSORS, AFFILIATES AND RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING PURSUANT TO THIS AGREEMENT OR UNDER ANY SECTION OF THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF LICENSE FEES PAID BY YOU DURING THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE OR ONE HUNDRED THOUSAND DOLLARS ($100,000), WHICHEVER IS LESS. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
7.1 This Agreement will take effect on the Effective Date and will continue unless terminated as described below (the “Term”).
7.2 ASIGRA will have the right to terminate this Agreement in the event of an occurrence of a breach of a material provision or You materially default in the performance of any of Your duties or obligations as set forth in this Agreement that is not remedied within seven (7) days of receipt of written notice thereof. A breach of a material provision of this Agreement will include, but be not limited to the following:
7.2.1 You fail to make payments when due;
7.2.2 You breach any of Your obligations described in Sections 2, or 3 or causes same to be done by a third party or develop software which is directly competitive with the DS-Software; or
7.2.3 You fail to obtain Annual Maintenance Services and Annual Support Services for the DS-Software for three (3) consecutive years, as applicable.
7.3 ASIGRA shall terminate this Agreement, effective immediately without written notice, if all or a substantial portion of Your assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; a proceeding is commenced by or against You for relief under bankruptcy, insolvency or similar laws and such proceeding is not dismissed within sixty (60) days; or You are adjudged bankrupt or insolvent. Additionally, ASIGRA may terminate this Agreement, effective immediately upon written notice, if You breach any of Section 5 (Confidentiality) or Section 12.8 (Assignment).
7.4 Additionally, either party may terminate this Agreement upon the provision of three (3) month’s written notice to the other party.
7.5 This Agreement will also terminate, effective immediately, upon the termination or non-renewal by You of the applicable ASIGRA SP Agreement.
7.6 For greater clarity and notwithstanding the foregoing, if You are using the DS-Software subject to an Evaluation Agreement between You and ASIGRA or otherwise for evaluation purposes, the license for such DS-Software shall terminate thirty (30) days after the DS-Software is shipped to You.
8.1 Upon the day this Agreement terminates (the “Termination Date”), for any reason whatsoever, all of Your rights hereunder will terminate immediately, except as otherwise provided herein. As of the Termination Date, You will immediately cease selling or promoting ASIGRA Cloud Backup Services to prospective Customer End-Users.
8.2 If You are a service provider that has signed the ASIGRA Cloud Backup Software Service Provider Agreement, (i) You will have a limited right to use the ASIGRA Intellectual Property to provide ASIGRA Cloud Backup Services solely to Your existing Customer End-Users for a maximum period of twelve (12) months from the Termination Date; and (ii) Your Customer End-Users shall retain a limited right to use the ASIGRA Intellectual Property and ASIGRA Cloud Backup Services for their existing backed-up data at Your existing capacity as at the Termination Date for a maximum period of twelve (12) months from the Termination Date.
8.3 If You are a service provider that has signed the ASIGRA Cloud Backup Software Service Provider Term License Agreement, (i) You will cease all use of the ASIGRA Intellectual Property, except to permit existing Customer End-Users to restore existing backed-up data; and (ii) Your Customer End- Users shall retain a limited right to use the ASIGRA Intellectual Property and ASIGRA Cloud Backup to restore their existing backed-up data without any ability to transmit new data for backup for a maximum period of twelve (12) months from the Termination Date.
8.4 If You are a Cloud Broker that has signed an Asigra Cloud Services Broker Agreement You will cease all use of the ASIGRA Intellectual Property immediately.
8.5 If You are a customer of an ASIGRA Reseller, You will retain either a (i) limited right to use the ASIGRA Intellectual Property and ASIGRA Cloud Backup Services for Your existing back-up data but without an additional right to purchase additional ASIGRA Cloud Backup Services capacity from such Reseller for a maximum period of twelve (12) months from the Termination Date; or (ii) a limited right to use the ASIGRA Intellectual Property and ASIGRA Cloud Backup Services to restore Your existing backed-up data without any ability to accept new data for backup for a maximum period of twelve (12) months from the Termination Date.
8.6 Other than as described above, You will, within thirty (30) days of the Termination Date, destroy all materials related to ASIGRA Cloud Backup Services in its possession or control, regardless of its format or containing medium.
8.7 Other than as necessary to perform the tasks described above, You will expunge all ASIGRA Confidential Information from Your own computer system or storage media in Your control or possession as of the Termination Date. ASIGRA will expunge all of Your Confidential Information from its own computer system or storage media in its control or possession as of the Termination Date, except as required to fulfill the surviving obligations of this Agreement. For greater clarity, each of the parties will be entitled to retain an original copy of this Agreement.
8.8 Your continued rights to use the ASIGRA Intellectual Property and/or ASIGRA Cloud Backup Services as described in Sections 8.2, 8.3, 8.4 and 8.6 above following termination or expiration of this Agreement are entirely contingent upon (i) Your continued compliance with Sections 2.5, 2.6, 2.8, 3 and 5 of this Agreement; and (ii) Your payment of any and all fees, due and owing, within seven (7) days of such Termination Date as applicable.
8.9 Your failure to comply with the terms of this Section will result in irreparable harm to ASIGRA and, accordingly, in addition to any legal remedies available to ASIGRA as a result of such failure to comply, ASIGRA will have the right to seek specific performance of this Section 8.8 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from a court of competent jurisdiction in accordance with the provisions of this Agreement. You will submit to the personal jurisdiction of any such court in an action seeking such relief.
9.1 Indemnity by ASIGRA
9.1.1 ASIGRA will defend, at its expense, any and all actions and suits brought by third parties against You resulting from a breach of any of ASIGRA’s warranties described in Section 6.1 and will pay all direct damages, awards and expenses that are finally awarded by a court or arbitral body to such third party (or any settlement amount agreed to in writing by ASIGRA and such third party), subject to the limitations and disclaimers set forth in this Section 9.1.1, provided that (a) You promptly notify ASIGRA of any such action or suit following a responsible officer or director of Yours becoming aware of such action or suit; (b) You give ASIGRA sole control over the defense, settlement or compromise of any such action or suit; and (c) You co-operate fully in ASIGRA’s defense or settlement of such claim.
9.1.2 ASIGRA will have no indemnity obligation to You if the actions or suits described in Section 9.1.1 above resulted from (i) Your modification of the DS-Software or ASIGRA Cloud Backup Services (including other services provided by You), any Customer End-User or Reseller or any support services (including SPR Support) not provided by ASIGRA; (ii) Your failure to promptly install an Upgrade or any enhancement that would have eliminated the actual or alleged infringement after ASIGRA or Reseller has given notice to You that such Upgrade or enhancement is available; (iii) Your failure to use the latest version of the DS-Software or any component of the latest version of the DS-Software after ASIGRA or Reseller has notified You that such latest version of the DS-Software is available; (iv) such claim arises from Third Party Software or Open Source Software unless such claim arises from ASIGRA’s failure to comply with the licensing requirements of any Third Party Software or Open Source Software made available to You upon the Effective Date; or (v) the combination by You of the DS-Software with other items and hardware not provided by ASIGRA, but only if the claim would not have arisen from use of the DS-Software alone.
9.1.3 If any part of the DS-Software or the ASIGRA Intellectual Property or ASIGRA Cloud Backup Services is, in ASIGRA’s opinion, likely to become the subject of a suit, action or claim, ASIGRA, at its option and at no expense to You or the Customer End-User: (i) obtain for You or the Customer End-User from all persons who claim an interest in the DS- Software, the ASIGRA Intellectual Property, ASIGRA Cloud Backup Services, Annual Maintenance Services or Annual Support Services the right allowing You or the Customer End- User to use the same as contemplated by this Agreement; or (ii) substitute non-infringing functionally equivalent DS-Software, ASIGRA Intellectual Property, ASIGRA Cloud Backup Services, Annual Maintenance Services or Annual Support Services, subject to the limitations contained in Section 9.1.1 above.
9.1.4 THE PROVISIONS OF THIS SECTION 9.1 STATE THE EXCLUSIVE LIABILITY OF ASIGRA AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE-MARK, INDUSTRIAL DESIGN OR TRADE SECRET INFRINGEMENT.
9.2.1 You will defend, at Your expense, any and all actions and suits brought by third parties against ASIGRA resulting from: a breach of any of Your warranties described in Section 6.2; or (b) any claim that any material developed by You or any Customer End-User and used by You or any Customer End-User infringes any patent, trade-mark, industrial design, trade-secret or copyright; and You will pay all direct damages, awards and expenses that are finally awarded by a court or arbitral body to such third party (or any settlement amount agreed to in writing by Customer and such third party), subject to the limitations and disclaimers set forth in this Section 9.2.1, provided that (a) ASIGRA promptly notifies You of any such action or suit following a responsible officer or director of ASIGRA becoming aware of such action or suit; (b) ASIGRA gives You sole control over the defense, settlement or compromise of any such action or suit; and (c) ASIGRA co-operates fully in Your or Customer End-User’s defense or settlement of such claim.
9.2.2 THE PROVISIONS OF THIS SECTION 9.2 STATE YOUR EXCLUSIVE LIABILITY AND THE EXCLUSIVE REMEDY OF ASIGRA WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE-MARK, INDUSTRIAL DESIGN OR TRADE SECRET INFRINGEMENT.
9.3 No action arising hereunder whether in contract or in tort may be brought more than two (2) years after the cause of action is discovered or should reasonably have been discovered.
10.1 All written communications and notices with respect to this Agreement will be sent via facsimile to ASIGRA at (416) 736-7120 Attention: Legal Department or by email at client. services@asigra.com or such other address as such ASIGRA may from time to time notify in writing. Facsimiles and email will be deemed received on the day that they are sent. ASIGRA prohibits the use of its facsimile numbers or email address as drop-boxes for email or fax spam offers. You will whitelist and add “@asigra.com” to Your security and archiving services and ASIGRA disclaims any responsibility for any notices that are not received by You as a result of Your failure to monitor Your spam filters or otherwise arising from failures of third parties to properly process or deliver ASIGRA’s electronic communications.
11.1 Subject to Section 11.3, any dispute, controversy or claim arising out of or relating to this Agreement, or breach, termination or invalidity thereof shall be finally settled by arbitration before a single arbitrator in accordance with the UNCITRAL Arbitration Rules as presently in force with due regard to the provisions of the Ontario International Commercial Arbitration Act. In the event of any conflict between the UNCITRAL Arbitration Rules and the terms of this Agreement, the terms of this Agreement will govern and control.
11.2 Arbitration shall be initiated by written notice. If the parties fail to agree on the selection of a sole arbitrator within thirty (30) days from the date on which the claimant’s request for arbitration has been communicated to the other party, either party may apply to the Ontario Superior Court for an order appointing an arbitrator. The parties intend that the arbitrator be a senior practicing Ontario lawyer or retired judge who has arbitration credentials and significant experience in international business and technology matters, specifically software licensing.
11.3 Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from the Ontario Superior Court of Justice only such interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy).
11.4 The arbitration shall be in English, and shall take place in Toronto, Ontario, Canada. The parties agree that all matters relating to the arbitration shall remain confidential.
11.5 The parties to the arbitration shall jointly pay and be responsible for the costs of the arbitration. However, the arbitrator may make an award of costs upon the conclusion of the arbitration making one party to the arbitration liable to pay the costs of the other party.
11.6 Any award rendered by the arbitration tribunal including any award of costs, shall be final and binding on both parties, subject only to the rights of appeal applicable to UNCITRAL arbitrations under the provisions of the Ontario International Commercial Arbitration Act. The award may be enforced in any jurisdiction under the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Neither party shall directly or indirectly take any step to impede or delay the due enforcement of an arbitral award made under this Agreement.
11.7 The award will (i) be granted and paid in United States of American dollars exclusive of any tax, deduction, or offset and (ii) include simple interest from the date the award is rendered until it is fully paid, computed at the rate of 12% per annum. Furthermore, the parties agree that any additional costs, fees, or expenses incurred in enforcing the arbitral award will be charged against the party that resists its enforcement.
12.1 If any clause, sentence, paragraph or part of this Agreement will be held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such judgment will not affect or nullify the remaining provisions of this Agreement.
12.2 This Agreement will be governed by and interpreted in accordance with the laws of the province of Ontario, Canada and the federal laws of Canada applicable therein, excluding any conflicts of laws rules. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Subject to Section 11, the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under this Agreement.
12.3 The English language version of this Agreement will be the controlling version irrespective of any translation of this Agreement.
12.4 No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver, nor will any single or partial exercise preclude further exercise thereof.
12.5 The headings of paragraphs are inserted for convenience only and are not intended to be construed as part of this Agreement or to limit the scope of a particular paragraph.
12.6 Other than the ASIGRA SP Agreement signed by You or a Reseller, as applicable, this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written agreements (including any prior versions of this Agreement for previous versions of the Software), oral agreements, negotiations, and commitments, if any, relating to the subject matter of this Agreement.
12.7 Subsequent to the execution of this Agreement and without any additional consideration, You will execute and deliver or cause to be executed and delivered any further legal instruments and perform any acts which are or may become necessary to carry out the true intent and meaning of this Agreement.
12.8 You may not assign this Agreement or any of its obligations under this Agreement without the prior written permission of ASIGRA. This Agreement is binding upon and enures to the benefit of the parties and their respective successors and permitted assigns.
12.9 The parties agree that those sections which by their nature should survive termination of this Agreement will survive such termination, such sections to include, but be not limited to, Sections 1, 2, 3, 4, 5, 6.2- 6.8, 8, 10, 11 and 12.
12.10 Except as expressly set out herein, nothing contained in this Agreement will create or imply any agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
12.11 The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of this Agreement, that ambiguous or conflicting terms or provisions should be construed against the party that (or its counsel that) prepared this Agreement.