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  • StarWind End User License Agreement (EULA)

StarWind Software ("StarWind") End User EULA Agreement ("EULA")

IMPORTANT INFORMATION

PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.

StarWind Software, Inc. (“Licensor” or “StarWind”) is willing to license use of the software solution purchased by you (“Software”) and any service, component and documentation provided by licensor in association with the software to you as the individual or the legal entity that will be utilizing the software (referred to below as “You” or “Licensee” or “End User”) only on the condition that you accept all of the terms of this eula. by clicking the “accept” or “yes” button or otherwise indicating assent electronically, or loading or using the software, you agree to the terms and conditions of this eula. If you do not agree to these terms and conditions, click the “I do not accept” or “No” button or otherwise indicate refusal, make no further use of the software.

1. Grant of License

THE SOFTWARE IS LICENSED, NOT SOLD. Licensee acknowledges that no title to the Software is delivered, transferred or assigned by StarWind, this EULA or any course of conduct to Licensee. StarWind and its licensors own the Software and documentation that accompany this EULA, as well as own all updates, upgrades, derivatives, revisions, and enhancements thereto.

Subject to Licensee’s acceptance above, and Licensee’s compliance with all of the terms and conditions set forth in this EULA, StarWind grants to Licensee a nonexclusive, nontransferable right and license to copy and load the Software on the number of computers and servers authorized (or licenses purchased) under the [Purchase Order] and to execute, perform, display and store the Software for internal purposes within Licensee’s internal computer network. You may make only one archival, back-up copy in accordance with Your standard software back-up policies of each [unit of Software delivered by StarWind / license purchased by Licensee]; provided that you reproduce along with all such archival copies of the Software all of the proprietary rights notices that are on any copy of the Software.

The Software and all copies thereof are the exclusive property of StarWind and its licensors.

The Software may include the components that are offered on terms and conditions that are in addition to those set forth in this EULA, in which case the terms and conditions for such components are set forth in additional licenses accompanying those components.

2. Restrictions

Licensee may not, nor shall Licensee permit others to:
  • use the Software in any manner not expressly authorized herein;
  • copy the Software except as expressly permitted herein;
  • to the maximum extent permitted by applicable law, reverse engineer, decompile, or disassemble the Software or otherwise attempt to derive the Software’s source code;
  • provide timesharing, rental use of the Software in a service bureau or use in any other commercial capacity whereby third parties are provided access to or use of the Software in return for a fee or other non-cash compensation;
  • sublicense the Software;
  • remove, alter, or obscure any proprietary notices, labels, or marks from the Software;
  • or modify, translate, adapt, arrange, or create derivative works based on the Software.

3. Technical Support

StarWind may make changes to the Software, or to the items referenced therein, at any time without notice, but is not obligated to support or update the Software. Any technical support that StarWind provides, if at all, shall be subject to a separate technical support agreement which and payment by Licensee of a separate fee therefore. StarWind’s premium support program is also available to customers for an additional fee. StarWind’s current support programs are described in details at support, which programs are subject to change from time to time in StarWind’s sole discretion.

4. Limited Warranties

StarWind warrants that the Software will operate substantially in accordance its specifications for a period of 180 calendar days after Licensee accepts this EULA. Your sole remedy in the event of a breach of this warranty will be that StarWind will repair or replace the Software for a full a refund of the amount You paid for the Software.

STARWIND’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR NON-CONFORMITY WITH THE LIMITED WARRANTY SET FORTH ABOVE SHALL BE, AT STARWIND’S OPTION, TO ATTEMPT TO CORRECT OR WORK AROUND ERRORS, OR TO REFUND THE AMOUNTS PAID BY YOU FOP SUCH SOFTWARE AND TERMINATE THIS LICENSE. In order to obtain warranty remedies You must cease use of the Software. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.

EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY BY STARWIND, TO THE MAXIMUM EXTENT ENFORCEABLE UNDER APPLICABLE LAW, NEITHER STARWIND NOR ITS LICENSORS MAKES, AND YOU RECEIVE NO, WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND STARWIND AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY OTHER WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NEITHER STARWIND NOR ITS LICENSORS WARRANT THAT: (i) THE SOFTWARE WILL MEET YOUR NEEDS; (ii) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (iii) THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED; (iv) THAT THE WEB SITE OR SERVER THAT MAKES THE SOFTWARE AVAILABLE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. STARWIND DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS, OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE OR SERVICES MADE AVAILABLE BY STARWIND OR ITS LICENSEES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF STARWIND OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS SECTION SHALL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY REMEDY PROVIDED HEREUNDER IS DEEMED BY A COURT OF COMPETENT JURISDICTION TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS LICENSE AND THAT THE PARTIES WOULD NOT ENTER INTO THIS LICENSE WITHOUT THESE LIMITATIONS OF LIABILITY. The above exclusions may not apply as some jurisdictions do not allow the exclusion of implied warranties or limitations on the duration of implied warranties. In addition to the above warranty rights, You may also have other rights, which vary from jurisdiction to jurisdiction.

5. Limitation of Liability

StarWind’s cumulative liability to You for all claims of any kind resulting from StarWind’s performance or breach of this EULA or failure of, defect in, or any other issue in or arising from the Software shall not exceed, to the extent collected by StarWind, the amounts actually received by StarWind from You under this EULA for the unit of Software which is the subject of such claim during the twelve (12) month period preceding such performance, breach, failure, defect or other issue, regardless of whether StarWind has been advised of the possibility of such damages or whether any remedy set forth herein fails of its essential purpose or otherwise.

EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THIS LICENSE, IN NO EVENT WILL STARWIND OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA, LOST PROFITS OR PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY EVEN IF STARWIND OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS SECTION SHALL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY REMEDY PROVIDED HEREUNDER IS DEEMED BY A COURT OF COMPETENT JURISDICTION TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS LICENSE AND THAT THE PARTIES WOULD NOT ENTER INTO THIS LICENSE WITHOUT THESE LIMITATIONS OF LIABILITY.

6. Indemnification

StarWind does not endorse, support, or guarantee performance results that are obtained by using the Software. Any difference in system hardware, software design, or configuration may affect actual performance. Licensee should consult other sources of information to evaluate the performance of the systems or components that they are considering to purchase. You agree to defend, indemnify, and hold StarWind harmless from and against any and all actions, claims, damages, expenses (including attorney’s fees) and liabilities arising from the use of the Software, other than any damages, expenses or liabilities for which StarWind has expressly agreed herein to be liable.

7. Agreement Termination

StarWind may terminate this EULA at any time if the End User violates its terms [or fails to pay any required license fees]. Upon termination, the End User should immediately uninstall the Software and return all copies of the product to StarWind.

8. No Hazardous Environments

The Software is not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use the Software.

9. Export

You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end user and destination restrictions issued by the U.S. and other governments. You shall not directly or indirectly, ship, transfer, downloaded, distribute, or export the Software to any country or use the Software in any manner prohibited by the United States or any applicable export control law, restriction, or regulation. This EULA shall automatically terminate upon Your failure to comply with the terms hereof.

10. U.S. Government

No Government procurement regulation or contract clauses or provision shall be deemed a part of any transaction between the parties under this EULA unless its inclusion is required by law, or mutually agreed upon in writing by the Parties in connection with a specific transaction. You acknowledge that StarWind represents that: (i) the Software is unpublished, “Commercial Computer Software and Commercial Computer Software Documentation” subject to “Restricted Rights” usage limitations, as such italicized terms are discussed in 48 CFR§227.401 and any other equivalent Government regulation; (ii) that the Software was developed exclusively at private expense, that no part was developed with Government funds, nor is any part in the public domain; and (iii) that such items constitute trade secrets and other proprietary rights of StarWind for all purposes of the Freedom of Information Act. The Contractor or Manufacturer is StarWind at its legal registration address.

11. Applicable Law and Export Controls

Claims arising under this EULA shall be governed by the laws of Massachusetts, regardless of its choice of law principles, and the United Nations Convention on Contracts for the Sale of Goods is hereby excluded. StarWind is not obligated under any other agreements unless they are made in writing and signed by an authorized representative of StarWind. If any provision of these license conditions is found to be invalid or otherwise unenforceable, the further conditions of this EULA will remain fully effective and the parties will be bound by obligations which approximate, as closely as possible, the effect of the provision found invalid or unenforceable, without being themselves invalid or unenforceable. This License is the entire agreement between You and StarWind relating to the Software and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. Your license rights hereunder shall terminate upon Your breach of any term contained herein and You shall cease use of and destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination of this EULA.
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