SOFTWARE LICENSE AGREEMENT
Effective September 2018
©Asigra Inc. 2018. All Rights Reserved
ASIGRA has conceived, designed and developed an automatic, unattended backup/restore data storage management technology and now wishes to grant You the right to use the ASIGRA Subscription technology in connection with the Backup Services provided by Your Service Provider 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:
1. Grant of Rights
1.1 ASIGRA hereby grants to You a non-exclusive, non-transferable, limited, revocable license to use the ASIGRA Intellectual Property as required to obtain the benefits of the Backup Services. You are permitted to: (i) install and use the DS-Software on Your computer or other storage device; (ii) install and use the DS- 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 over such network; and (iii) make backup copies of the DS-Client Software, solely to permit You to use the Backup Services.
1.2 In order to receive the licenses granted above, You shall pay your Service Provider all applicable Service Fees and such other fees as set out in Your SP Service Agreement in the manner described in such agreement.
1.3 ASIGRA retains all rights in the ASIGRA Intellectual Property not specifically granted herein to You.
1.4 ASIGRA is the authorized sublicensor of any Third Party Software that it sublicenses to You with the DS-Software. ASIGRA further grants You a non-exclusive, non-transferable, limited, revocable sublicense to use the Third Party Software solely in connection with Your Backup Services during the Term. The sublicense granted to You to use the Third Party Software in connection with Your Backup Services terminates upon the Termination Date.
1.5 The DS-Software contains Open Source Software that 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 as of the Effective Date.
1.6 You shall not offer, market or otherwise provide a cloud backup service using the ASIGRA Subscription to any third parties.
1.7 The rights and licenses granted to You are personal to You and are not transferable or assignable. You may not assign, sublicense, rent, lease, convey (whether part of an asset sale, merger, amalgamation or otherwise), encumber or transfer any component of the ASIGRA Subscription or any of Your rights or obligations under this Agreement and any attempt to do so by You will be void.
2. Proprietary Rights of ASIGRA/Restrictions on Use
2.1 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, the ASIGRA Subscription and all future functionality and product developments if any, that are related to the ASIGRA Subscription. You obtain no right to modify, duplicate or reverse- engineer any aspect of the ASIGRA Intellectual Property or the ASIGRA Subscription except as may be permitted under an applicable Open Source License.
2.2 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 under 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 under the applicable Open Source License.
2.3 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. You will comply with all reasonable requests made by ASIGRA in relation to the protection of its intellectual property rights hereunder.
2.4 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of the DS-Software or of the ASIGRA Intellectual Property (except as may be permitted under 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. ASIGRA and/or the owners of the Third Party Software will be the owner of same whether or not made in compliance with the Agreement.
2.5 If You become aware of any unauthorized decompilation or infringement of the ASIGRA Subscription by any third party (except as may be permitted under 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.
2.6 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.
3. Backup Services
3.1 ASIGRA will not be liable for Your use of any Backup Services, including but not limited to SP Support, or any services that may be agreed upon by means of the SP Services Agreement or any other agreement, in writing or otherwise.
4. Confidentiality and Data Protection
4.1 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 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 4) without the express written consent of the Disclosing Party. You may disclose ASIGRA Confidential Information to Your employees, agents and contractors on a need-to-know basis during the Term so long as such parties agree to substantially equivalent confidentiality obligations.
4.2 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 shall not include other ASIGRA Hybrid Partners, service providers or channel partners) without a breach of the 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 the Agreement; or (d) was known to the Receiving Party before receipt thereof from the Receiving Party.
4.3 A Receiving Party may disclose Confidential Information if required 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.
4.4 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.
4.5 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.
4.6 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 4. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized disclosure, possession, use or knowledge of the Confidential Information that becomes known to an employee, consultant, designee or officer of the Receiving Party.
4.7 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 4 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 4 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 4, 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.
5. Representations and Warranties
5.1 ASIGRA covenants, represents and warrants that: (i) to its knowledge, information and belief, 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 (ii) ASIGRA has all rights to grant the rights and licenses hereunder.
5.2 You hereby covenant, represent and warrant to ASIGRA that:
5.2.1 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
5.2.2 You covenant, represent and warrant to ASIGRA that You will access and use the ASIGRA Subscription 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.
5.3 THE REPRESENTATIONS AND WARRANTIES IN THIS SECTION 5 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 ASIGRA SUBSCRIPTION PROVIDED BY ASIGRA WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE ASIGRA INDEMNITEES 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.
5.4 NO ASIGRA INDEMNITEE NOR THE OWNERS OF ANY THIRD PARTY SOFTWARE MAKES ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY YOU FROM USE OF THE ASIGRA SUBSCRIPTION OR SP SUPPORT GENERALLY ON ANY THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE. NO ASIGRA INDEMNITEE WARRANTS PROPER OPERATION OF THE HARDWARE AND COMMUNICATIONS SOFTWARE AND HARDWARE UTILIZED BY YOU. EACH ASIGRA INDEMNITEE 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. THE 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 YOU MAY EXPERIENCE AS A RESULT USING THE ASIGRA SUBSCRIPTION.
5.5 IN NO EVENT WILL ANY ASIGRA INDEMNITEE OR THE OWNERS OF ANY THIRD PARTY SOFTWARE BE LIABLE FOR ANY 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 THE 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 ANY ASIGRA INDEMNITEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.6 IN NO EVENT WILL THE AGGREGATE LIABILITY THAT THE ASIGRA INDEMNITEES MAY COLLECTIVELY INCUR IN ANY ACTION OR PROCEEDING PURSUANT TO THE AGREEMENT EXCEED THE AGGREGATE AMOUNT OF SERVICE FEES PAID BY YOU TO YOUR SERVICE PROVIDER DURING THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE. THIS SECTION WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
5.7 YOU ACCEPT THIS DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE ASIGRA SUBSCRIPTION AND UNDERSTAND THAT THE PRICE OF THE ASIGRA SUBSCRIPTION WOULD BE HIGHER IF ASIGRA WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.
6. Term and Termination
6.1 This Agreement will take effect on the Effective Date and will continue unless terminated as described below (the “Term”).
6.2 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:
6.2.1 You breach any of Your obligations described in Sections 1 or 2 or causes same to be done by a third party or develop software which is directly competitive with the DS-Software; or
6.3 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 Section 4 (Confidentiality).
6.4 Additionally, either party may terminate this Agreement upon the provision of thirty (30) days written notice to the other party.
6.5 This Agreement will also terminate, effective immediately, upon the termination of the SP Service Agreement.
7. Duties Upon Termination
7.1 Upon the day this Agreement terminates (the “Termination Date”), for any reason whatsoever, all of Your rights hereunder will terminate immediately. You shall immediately cease use of the ASIGRA Intellectual Property and the Backup Services.
7.2 You will, within thirty (30) days of the Termination Date, destroy all materials related to ASIGRA Subscription in Your possession or control, regardless of its format or containing medium.
7.3 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. You shall be entitled to retain an original copy of the Agreement as it may be amended, and any ancillary agreements. ASIGRA shall expunge all Confidential Information of Yours from its own computer system or storage media in its control or possession.
7.4 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 ASIGRA will have the right to seek specific performance of this Section 7 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.
8.1 Indemnity by ASIGRA
8.1.1 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 5.1 and ASIGRA 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 8.1), provided that (i) 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; (ii) You give ASIGRA sole control over the defense, settlement or compromise of any such action or suit; and (iii) You co-operate fully in ASIGRA’s defense or settlement of such claim.
8.1.2 ASIGRA will have no indemnity obligation to You if the actions or suits described in Section 8.1.1 above resulted from (i) Your modification of the ASIGRA Subscription or any support services (including SP Support) not provided by ASIGRA; (ii) Your failure to promptly install an upgrade or any enhancement that would have eliminated any actual or alleged infringement after ASIGRA has given notice to You that such upgrade or enhancement is available; (iii) Your failure to use the latest version of the DS- Software after ASIGRA 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; or (v) the combination by You of the ASIGRA Subscription with other items and hardware not provided by ASIGRA, but only if the claim would not have arisen from use of the ASIGRA Subscription alone.
8.1.4 If any part of the ASIGRA Subscription 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, shall: (i) obtain for You from all persons who claim an interest in the ASIGRA Subscription, the right to continue to allow You to use the ASIGRA Subscription as contemplated by the Agreement; or (ii) substitute, as determined by ASIGRA acting reasonably, a non-infringing functionally equivalent substation for the ASIGRA Subscription, subject to the limitations contained in this Section 8.1.
8.1.5 THE PROVISIONS OF THIS SECTION 8.1 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.
8.2 Your Indemnity
8.2.1 You will defend, at Your expense, any and all actions and suits brought by third parties against the ASIGRA Indemnitees resulting from a breach of any of Your warranties described in Section 5.2 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 8.2, provided that (i) 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; (ii) ASIGRA gives You sole control over the defense, settlement or compromise of any such action or suit; and (iii) ASIGRA co-operates fully in Your defense or settlement of such claim.
8.2.2 THE PROVISIONS OF THIS SECTION 8.2 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.
8.3 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.
9.1 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 firstname.lastname@example.org 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.
10. Dispute Resolution and Remedies
10.1 The parties agree to resolve any and all disputes, disagreements or differences between the parties relating to this Agreement using the process described below.
10.2 The parties hereto agree to first attempt to settle any and all disputes, disagreements or differences between the parties relating to their business relationship with each other through a mediation (“Mediation”).
10.3 In the event that the Mediation does not achieve a resolution of all issues which are governed by this Agreement, then the parties will proceed to arbitration (“Arbitration”) pursuant to the process described below.
10.4 Mediation shall be initiated by any party wishing to mediate by serving a Notice to Mediate which describes the issue(s) needing to be mediated.
10.5 Any party to the Mediation can select a mediator who is registered as a mediator with ADR Chambers. The first such proposed mediator shall be selected to conduct the Mediation.
10.6 Mediation shall take place within thirty (30) days of the delivery of the Notice to Mediate.
10.7 The parties will exchange Mediation Briefs (which will include a brief description of the dispute, disagreement or difference to be mediated and a summary of the relief claimed) no less than 10 days prior to a scheduled Mediation. A copy of the Mediation Briefs shall also be provided to the mediator seven (7) days prior to the scheduled Mediation.
10.8 Any Mediation that is to take place, will take place in Toronto, Ontario, Canada and in English. The parties will equally share the costs of the mediator.
10.9 If Mediation is unsuccessful, any and all remaining disputes, disagreements or differences between the parties relating to their business relationship with each other, including any dispute, disagreement or difference relating to the validity, enforceability or applicability of this agreement to arbitrate, shall be submitted to final and binding Arbitration. No appeal lies to any court on any question of fact, law or mixed fact and law. The Arbitration shall be commenced by one party delivering to the other party a Notice to Arbitrate which shall set out a brief description of the dispute, disagreement or difference to be arbitrated and a summary of the relief claimed.
10.10 Any party to the Arbitration can select an arbitrator who is registered as an arbitrator with ADR Chambers. The first such proposed arbitrator shall be selected to conduct the Arbitration.
10.11 The Arbitration shall be conducted in accordance with the Arbitration Act, 1991, SO 1991, c. 17. The Arbitration rules and procedures shall be as agreed between the parties. In the event that the parties fail to reach agreement as to the rules and procedures to be followed in the Arbitration within fourteen (14) days of the appointment of the arbitrator, any party may apply to the arbitrator for a determination of the rules and procedures to be applied in the arbitration.
10.12 The arbitrator shall have authority to determine the arbitration process. Where a dispute involves a quantum of damages below $CDN40,000.00, the arbitration process shall not include examinations in advance of the Arbitration.
10.13 The Arbitration shall be conducted in Toronto, Ontario, Canada in English.
10.14 The parties agree that all matters relating to the Arbitration shall remain confidential.
10.15 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 a party(ies) to the Arbitration liable to pay the costs of the other party(ies).
11.1 In the Agreement (i) all usage of the word “including” or the phrase “e.g.” in the Agreement shall mean “including, without limitation”; and (ii) the division of the Agreement into separate Sections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of the Agreement.
11.2 Neither party shall be liable for any delay in delivery or delay in the performance of other acts required hereunder, when solely resulting from causes beyond their respective control. Such causes shall include, but not be limited to, acts of God, acts of government, wars, revolutions, civil disturbances, strikes, floods, fire, perils of the sea, or other interruption of transportation or telecommunications. Notice to this effect shall be given in writing to the other party.
11.3 If any section, sentence, paragraph or part of the Agreement is held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such judgment will not affect or nullify the remaining provisions of the Agreement.
11.4 The Agreement shall 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 shall not apply to the Agreement. Subject to Section 10, the parties irrevocably attorn to the non- exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under the Agreement.
11.5 The English language version of the Agreement shall be the controlling version.
11.6 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 of any right, power or privilege.
11.7 The 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 DS-Software), any oral agreements, negotiations, and commitments, if any, relating to the subject matter of the Agreement.
11.8 This Agreement is binding upon and enures to the benefit of the parties and their respective successors and permitted assigns.
11.9 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 - 4, 5.2 - 5.7, 7, 9 - 12.
11.10 You are solely responsible for the management of Your data back-up, data recovery, and disaster recovery measures. ASIGRA shall not be liable for any of Your internal processes, procedures, or requirements to insure the protection, loss, confidentiality, or security of Your data or information.
11.11 The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of the Agreement, that ambiguous or conflicting terms or provisions should be construed against the party who (or whose counsel) prepared the Agreement.
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 and Support Services” means those bug fixes, patches and updates to the latest version of DS-Software provided to You by Your Service Provider and made available by ASIGRA 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 and Support Services as such plan may be amended from time to time.
“ASIGRA Indemnitees” means ASIGRA, its directors, officers, employees, contractors and agents.
“ASIGRA Intellectual Property” means any trade secrets, copyrights, inventions, works, Trade-marks, logos, designs, commercial symbols, insignia, domain names, materials (including but not limited to user documentation, manuals, questionnaires, bulletins, business processes and best practices, training materials, memoranda, videos, charts, notices or other publications or documents prepared by ASIGRA as may be modified from time to time), processes, analyses, techniques, know- how and show-how developed, owned, or provided by ASIGRA in connection with the ASIGRA Subscription.
“ASIGRA Subscription” means ASIGRA’s proprietary backup/restore data storage management solution, including the DS-Software and Annual Maintenance and Support Services, as the same may be modified from time to time.
“Backup Services” means the online backup, storage, and recovery services Your Service Provider is providing You using the ASIGRA Subscription.
“Business Information” means all financial and business information and data of ASIGRA and its customers; products and services supplied by ASIGRA; business and marketing plans and strategies of ASIGRA; and studies, plans, training materials, tables and compilations of business and industry information acquired or prepared by ASIGRA or on its behalf.
“Confidential Information” means the provisions of the Agreement and all of party’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 a party from time to time and that is disclosed or made available by a party to the other party under the Agreement and for ASIGRA includes all Business Information and the ASIGRA Intellectual Property, excluding Trade-marks.
“Customer End-User” means You, the ultimate end-user of the ASIGRA Subscription, including employees and contractors of Yours.
“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 of the ASIGRA Subscription.
“Disclosing Party” means a party that discloses Confidential Information to a Receiving Party hereunder.
“DS-Software” means, collectively, all proprietary software developed by ASIGRA for use with the ASIGRA Subscription as may be upgraded by ASIGRA from time to time and includes the Third Party Software and the Open Source Software contained therein.
“Effective Date” means the date this Agreement takes legal effect, being the date You, or Your authorized agent (including Your Service Provider) acting on Your behalf, clicks “I Accept”.
“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 contained in the DS-Software.
“Receiving Party” means a party that receives Confidential Information from a Disclosing Party hereunder.
“SP Service Agreement” means the form of services agreement used by Your Service Provider to provide Backup Services and other services to You.
“SP Support” means the first and second level maintenance and support to be provided by Your Service Provider in connection with Backup Services.
“Service Fee” means those fees payable by You to Your Service Provider for the Backup Services as described hereunder;
“Service Provider” means an authorized ASIGRA service provider that provides the ASIGRA Subscription to You.
“Term” has the meaning set out in Section 6.1. “Termination Date” has the meaning set out in Section 7.1.
“Third Party Software” means software owned by a legal or natural person not a party to the Agreement (other than Open Source Software) that is contained in the DS-Software; and
“Trade-marks” means the trade-marks of ASIGRA, namely ASIGRA Cloud Backup, DS-Client Software, DS-System Software and the ASIGRA logo.