BY USING THE SOFTWARE OR CLICKING AGREE, END USER IS AGREEING TO BE BOUND BY THIS EULA. IF YOU ARE AGREEING TO THIS EULA ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS EULA ON YOUR EMPLOYER'S OR THAT THIRD PARTY'S BEHALF.
1.1 This End User License Agreement (“EULA”) is between Veeam Software (“Veeam”), and you, the end user entering into this EULA (“EULA”). The Veeam software, updates, documentation and license keys provided to End User (“Software”) are licensed and are not sold.
1.2 Scope This EULA describes the licensing of the Software and Maintenance (as defined below) provided to End User under a Transaction Document.
1.3 “Transaction” and “Transaction Document” have the following meanings: “Transaction(s)” is a License transaction pursuant to which End User: i) accepts this EULA as provided above and ii) takes actual or constructive possession of the Software. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by a) purchase orders, credit orders, commitment letters, license keys, amendments to this EULA or other similar materials, signed or unsigned, (each a “Transaction Document(s)”), or b) by the conduct of the affected parties. A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User, Veeam, or authorized third party distributors, dealers, and/or other resellers of the Software. A Transaction Document may contain usage, business, legal and other terms and conditions agreed to by the parties. The foregoing notwithstanding, each Transaction will require that: i) this EULA be accepted by End User and ii) End User obtains actual or constructive possession of the Software. In the event of a conflict or inconsistency between the terms and conditions of this EULA and those set forth in a Transaction Document, the terms and conditions of the Transaction Document will govern and control.
2.1 License Grant. Subject to the terms of this EULA, Veeam grants to End User, a perpetual (unless a “Limited Term” License is specified in a Transaction Document), non- transferable, non-exclusive, license (“License”), to install the Software solely in the Territory where the Software license is purchased, and to use the Software in object code format, up to the licensed capacity purchased, solely for End User's internal business purposes for the management and processing of its own data and not the data of any third party(ies). End User may make one copy of the Software solely for backup or archival purposes. “Territory” means the [country][region of Americas][region of Europe, Middle East and Africa][region of Asia Pacific] where End User resides. A “Limited Term” License begins upon generation of a license key and will cease in accordance with the terms of Section 8.0 below.
The data processing restriction set forth in the preceding paragraph will not apply to End User if End User a) has been accepted by Veeam, under the, “Veeam Cloud Provider Program”, as further identified at http://www.veeam.com/veeam-cloud-providers.html, and b) has accessed and is utilizing the Software with a stock-keeping unit number that designates End User as a “Cloud Provider” or similar description, thus authorizing End User to utilize the Software to perform systems management services for its customers.
2.2 Evaluation License. Subject to the terms of this EULA, if a License designated as an “Evaluation” License in a Transaction Document, End User is authorized to use one (1) copy of the Software for a 30 day period for non-production evaluation or demonstration purposes only. The Software is provided AS IS, with no warranty during this time period.
2.3 Not for Resale License. Subject to the terms of this EULA, if a License designated as a “Not for Resale” License in a Transaction Document, End User is authorized to use one (1) copy of the Software with full functionality for evaluation or demonstration purposes only, and for a defined period of time. The Software is provided AS IS, with no warranty during this time period.
2.4 Outsourcing. End User may allow a third party that is providing IT outsourcing services to End User to use and access the Software in compliance with the terms of this EULA, so long as the Software is only used and accessed for the sole benefit of End User. End User is responsible for such outsourcing company’s compliance with the terms of this EULA.
Maintenance and support (“Maintenance”) for the Software will be available in accordance with Veeam’s Maintenance policies then in effect and shall commence on delivery of the Software. Provided End User is current on Maintenance, End User will receive (a) online support and (b) any Software updates, enhancements and/or improvements that are generally available and delivered as part of Maintenance under the then current Maintenance policies. A copy of Veeam’s current Maintenance policies can be found at http://www.veeam.com/support.html.
End User will pay all fees due as set forth in a Transaction Document, plus applicable sales, use and other similar taxes.
5.1 The Software, workflow processes, user interface, designs, and other technologies provided by Veeam as part of the Software are the proprietary property of Veeam and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Veeam and its licensors. The Software is protected by applicable copyright and other intellectual property laws. End User may not remove any product identification, copyright, trademark or other notice from the Software. Veeam reserves all rights not expressly granted.
5.2 Restrictions. Unless otherwise stated in this EULA, End User may not:
During the term of this EULA and for a period of one (1) year thereafter, Veeam may, during normal business hours and upon reasonable prior notice to End User, inspect the files, computer processors, equipment and facilities of End User to verify End User's compliance with this EULA.
7.1 Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this EULA.
7.2 "Confidential Information" means all information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things:
7.3 Confidential Information excludes information that:
7.4 Recipient may disclose Confidential Information if required by law, but it will attempt to provide notice to the Discloser in advance so it may seek a protective order. Each party acknowledges that any misuse of the other party’s Confidential Information may cause irreparable harm for which there is no adequate remedy at law. Either party may seek immediate injunctive relief in such event.
If End User is granted a “Limited Term” License in a Transaction Document, then the License and this EULA expire at the end of the license period specified in the accompanying Transaction Document. Either party may terminate this EULA upon a material breach of the other party after a 30 days’ notice/cure period, if the breach is not cured during such time period. Upon termination of this EULA or a License, End User must discontinue using the Software, de-install and destroy or return the Software and all copies, within five (5) days. Upon Veeam’s request, End User will provide written certification of such compliance.
9.1 Veeam warrants that it has the right and authority to grant the License under this EULA. Veeam warrants that the Software, in its unmodified form as initially delivered or made available to End User, will perform substantially in accordance with its documentation for a warranty period of ninety (90) days from the date the Software is initially delivered to End User.
9.2 Exclusive Remedy and Sole Liability. In the event the Software fails in a material respect to operate in accordance with the documentation during the warranty period and Veeam is unable to correct the defect, Veeam’s sole and exclusive liability and End User’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by End User for the Software. In the event a reported problem with the Software is End User’s fault, End User agrees to reimburse Veeam for its correction efforts in accordance with its then standard rates. The foregoing limited warranty will not apply if failure of the Software is the result of damage or misuse caused by End User.
9.3 EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED "AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VEEAM OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY VEEAM DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THE LIMITED WARRANTY.
In no event will Veeam, its affiliates, resellers, or distributors or suppliers be liable for any indirect, special, incidental or consequential damages arising out of the use of or inability to use the Software, including, without limitation, lost profits, revenues, or productivity, loss of goodwill, work stoppage, computer failure or malfunction, loss of or damage to data or information, or any and all other commercial damages or losses, even if advised of the possibility thereof. Veeam is not responsible for any damage and does not have any liability beyond the amount paid by End User for the License.
Veeam will defend or settle any third party claim against End User to the extent that such claim alleges that the Software violates a copyright, patent, trademark or other intellectual property right, if End User, promptly notifies Veeam of the claim in writing, cooperates with Veeam in the defense, and allows Veeam to solely control the defense or settlement of the claim. Costs. Veeam will pay infringement claim defense costs incurred as part of its obligations above, and Veeam negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Veeam may modify the Software, procure the necessary rights, or replace it with the functional equivalent. If Veeam determines that none of these are reasonably available, then Veeam may terminate the Software and refund (as applicable) any prepaid and unused fees service fees and the license fee for perpetual License (amortized over a 5-year period from the date of the order). Exclusions. Veeam has no obligation for any claim arising from: Veeam’s compliance with End User’s specifications; a combination of the Software with other technology or aspects where the infringement would not occur but for the combination; or technology or aspects not provided by Veeam. THIS SECTION CONTAINS END USER’S EXCLUSIVE REMEDIES AND VEEAM’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
Except for assignment to Affiliates as provided below, and except in the event of a sale or transfer by Veeam of all or substantially all of its assets or voting securities, in which case Veeam may assign this EULA, neither party will assign all or any portion of its rights or obligations under this EULA to any third party without the prior written consent of the other party. End User may transfer and assign this EULA and the applicable Transactions Documents to an Affiliate of End User located in the same Territory as End User, upon written notice to Veeam, so long as the Affiliate has agreed in writing to be bound by the terms of this EULA. Upon such transfer, the End User’s License is terminated and it shall uninstall and destroy the Software. “Affiliate” means any company controlled by or under common control with End User, directly or indirectly, with an ownership interest of at least 50%.
Use, duplication, or disclosure of the Software to or by the United States Government is subject to the provisions and restrictions a s set forth in FAR 52.227-14 and FAR 52.227-19, or equivalent restrictions and provisions as set forth in DFAR 252.227-7013 and DFAR 252.227-7014.
14.1 Entire EULA. This EULA and any applicable Transaction Document sets forth Veeam's entire obligation and End User’s exclusive rights with respect to the Software. No modification of any term of this EULA is effective unless signed by both parties.
14.2 Enforceability and Waiver. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
14.3 Governing Law. This EULA will be governed by the laws of the State of Ohio, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods will not apply.
14.4 Export Controls and Applicable Laws. The Software is subject to United States Export Administration Regulations. Veeam prohibits any export or re-export of Veeam Software products, services, or technical data to any destinations subject to United States embargoes or trade sanctions, including but not limited to Iran, North Korea, Sudan, and Syria. End User warrants that: (i) it is not, nor is it owned or controlled by, a person identified on any United States or European Union sanctions or export control list that would prohibit it from receiving the Software; and (ii) it will not use or make available the Software to or on behalf of any person that is a citizen, national, or resident of, or that is controlled by the government of the countries with which the United States may prohibit export transactions. End User intends to use the Software for its own business or personal use and the Software will not will be used for or diverted for any unlawful purpose, including without limitation diversion to an unauthorized end-user or end-use.
14.5 Open Source. “Open Source Software” means various open source software components licensed under the terms of applicable open source license EULAs included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions. A current list of Open Source Software used by Veeam can be found at http://www.veeam.com/eula-oss.html.