ATTENTION: THIS IS A LEGALLY-BINDING CONTRACT. PLEASE READ THESE PROACTIVE SUPPORT TERMS OF SERVICE (“PAToS”) CAREFULLY BEFORE USING THE PROACTIVE SUPPORT SERVICES PROVIDED BY STARWIND SOFTWARE INC. PAToS GOVERN YOUR RELATIONSHIP WITH STARWIND AND USE OF ITS PROACTIVE SUPPORT. STARWIND HEREBY REQUESTS THAT YOU ACCEPT THE PAToS AND YOU MAY USE THE PROACTIVE SUPPORT SERVICES PROVIDED BY STARWIND ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. YOUR ACCEPTANCE AND USE OF PROACTIVE SUPPORT SERVICES SHALL BE DEEMED AS ACCEPTANCE OF THESE PAToS AND BY ACCEPTING THESE PAToS, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS HEREOF. IF YOU DO NOT ACCEPT THESE PAToS, YOU ARE NOT AUTHORIZED AND SHALL NOT USE STARWIND PROACTIVE SUPPORT SERVICES.
1. Acceptance of PAToS
a) Generally. These PAToS constitute a legally-binding agreement between you, either an individual or an entity (“you” or “user”), and StarWind Software Inc., a Commonwealth of Massachusetts corporation (“StarWind”), regarding use of StarWind’s ProActive Support services (“ProActive Support”). For the avoidance of doubt, to the extent the ProActive Support has been purchased and/or otherwise made available to the user, the term “Service” as defined in the ToU shall, for all purposes, include ProActive Support governed hereby. By purchasing or otherwise acquiring StarWind’s ProActive Support you agree to be bound by and to accept these PAToS and all terms and conditions contained and/or referenced herein and in the ToU. If and when user purchases any of StarWind’s software and/or hardware products, user shall be at all times subject to and in full compliance with the applicable StarWind Licensing Agreement relating to such product.
b) Applicability to Website and Services. If you do NOT agree to all the terms and conditions in these PAToS, including the ToU, you are NOT authorized to use ProActive Support. You may access and use the ProActive Support solely for your own benefit and strictly in accordance with these PAToS.
c) Updates to PAToS. These PAToS may be amended by StarWind at any time upon notice provided by any of the following means: (i) through a posting on the main page of the Website, (ii) providing you with notice after you login into your User Account (as defined in the ToU), or (iii) by e-mail to the address you provided when you set up your User Account. Your failure to provide or maintain accurate or current contact information in your User Account or your failure to visit User Account frequently will not obviate your responsibility to comply with these PAToS as amended from time to time. Please check these PAToS regularly to ensure that you are aware of all terms governing your use of ProActive Support.
d) Changes in the Service. StarWind reserves the right to make changes or updates with respect to the methods, means or types of services provided through ProActive Support or the format thereof at any time without notice to increase efficiency, improve quality of service or comply with the applicable law. StarWind also reserves the right to terminate or restrict your access to ProActive Support at its sole discretion provided, however, that in case of termination of Services hereunder by StarWind, other than termination for your breach, StarWind will refund the unused pro rated portion of any fees paid to StarWind for the provision of the ProActive Support
2. Provision of ProActive Support; Access to Data.
a) Remote Access. ProActive Support consists of software and services, which may include occasional remote access by StarWind professional personnel, that proactively monitors user’s infrastructure and conducts proprietary analytics in order to preemptively identify and troubleshoot user’s technical issues. StarWind reserves the right to add or withdraw any methods, means or types of services provided through ProActive Support in its sole discretion. ProActive Support may and will activate certain processes on your systems designed to achieve the goals of the ProActive Support, and such processes may run beyond your active control. You acknowledge and agree that you hereby grant access to your systems to StarWind’s software and personnel solely for the purposes of ProActive Support and StarWind, in addition to solving user’s issues and problems, may use the information obtained as a result of such processes for its internal analytics, improving the quality of its services, perform diagnostics, monitoring performance and health of the system, identifying potential problems and compatibility and operational issues, and general troubleshooting of hardware and software. Any proprietary information obtained by StarWind as a result of ProActive Support will be treated by StarWind as confidential and protected to the same extent as StarWind protects its own confidential information. For further description of ProActive Support, please see https://www.starwindsoftware.com/starwind-pro-active-support
c) Affirmative Consent. You agree to provide any and all required notices and obtain any necessary consents related to your, your personnel’s and your customers’ use of the ProActive Support and StarWind provision of the ProActive Support, including those related to the collection, use, processing, transfer and disclosure of personal information and Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data. You represent, warrant and covenant that you obtain all necessary consents granting StarWind’s means of ProActive Support, including its software and personnel, access to your systems and Customer Data solely for purposes of rendering ProActive Support. User will ensure that each member of user’s organization (including employees and contractors) and, if and as necessary, user’s Customers, whose data is managed and collected using ProActive Support has given its/his/her express consent to StarWind’s processing of such personal data. Personal data will be processed by StarWind or its affiliates or service providers, and the laws of the location of such affiliates or service providers regarding processing of personal data may be less or more stringent than the laws in user’s jurisdiction.
d) StarWind Tools. In addition to StarWind professional personnel, StarWind may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the ProActive Support and to help resolve your StarWind service requests. The tools will not deliberately collect, report, or store any of your data residing in the service production environment, except as necessary to monitor and troubleshoot the hardware, systems, and software, to reply to service requests or other problems identified in the ProActive Support and to otherwise comply with the terms of these PAToS. Data collected by the tools (excluding production data) may also be used to assist in managing StarWind’s product and service portfolio and for license and support management. You agree that (i) except as set forth in the following paragraph, you may not access or use the tools, and (ii) you will not use
e) Statistical Data. StarWind may compile statistical information related to the provision of the ProActive Support and the hardware, systems and software being serviced, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. StarWind retains all intellectual property rights in such information.
f) Ownership of Data. User retains all right, title and interest in and to the Customer Data. User grants StarWind a worldwide, royalty-free, sublicensable license to use, modify, reproduce, display the Customer Data only as reasonably required to provide ProActive Support. You represent that you have the right to grant the license contained in this section and otherwise in these PAToS. StarWind is free to use and incorporate any feedback you provide regarding ProActive Support without payment of any fees.
g) Telemetry Data. StarWind may collect telemetry data related to your use of ProActive Support in order to maintain, improve or analyze the ProActive Support. You acknowledge that StarWind may freely use any non-personal telemetry data that does not identify you or any of your users
3. User’s Additional Obligations
a) Proper Purposes. You agree to accept and use ProActive Support only for purposes permitted by these PAToS as well as any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You may not use ProActive Support for any purpose that in any way interferes or attempts to interfere with any of StarWind's or third party's services or products and you may not use the ProActive Support in any manner that could damage, disable, overburden, or impair any product or service. You agree that you will not use any third-party software that intercepts, "mines," or otherwise collects information from or through the ProActive Support. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available by StarWind to all users of the ProActive Support. You shall not institute, assist, or become involved in an attack upon any product or service. STARWIND IS NOT RESPONSIBLE FOR ANY VIOLATION OF APPLICABLE LAWS, RULES, OR REGULATIONS COMMITTED BY YOU, YOUR USERS, OR ANY OF YOUR AFFILIATES. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR USE OF THE STARWIND PROACTIVE SERVICES DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS. Specifically, you agree and warrant that in using ProActive Support, your actions do not contravene the laws, rules, or regulations of (1) the country, state, or locality where you reside, or (2) the country, state, or locality where ProActive Support is provided. This includes complying with applicable export and import restrictions as well as other restrictions.
b) Verification of Compliance. StarWind has the right to verify your compliance with these PAToS. If StarWind seeks to verify such compliance, you will provide information or other materials reasonably requested by StarWind to assist in the verification. StarWind monitors the overall performance and stability of the infrastructure of ProActive Support. You may not block or interfere with that monitoring. If StarWind reasonably believes a problem with ProActive Support that may or may not be attributable to you, you will cooperate with StarWind to identify the source of and resolve that problem.
c) No Disruption. You agree not to disrupt, hinder or limit the ProActive Support manually or by way of automated means and that you will not engage in any activity that interferes with, hinders or disrupts the ProActive Support.
4. Term and Termination
a) Term. The term of these PAToS (“Term”) shall begin when you acquire and pay for the ProActive Support (i.e. either by purchasing/licensing StarWind’s products that include the Proactive Support or by purchasing ProActive Support as a standalone service) and shall continue for the period set forth in the applicable purchase order or invoice unless otherwise terminated in accordance with the terms hereof provided that (i) these PAToS shall be deemed automatically terminated upon your breach of any material term hereof, and (ii) notwithstanding anything to the contrary herein, in case of a user’s breach there shall be no refunds, offsets or rebates.
b) Right to Change Services. StarWind reserves the right to change, suspend or discontinue the ProActive Support or any portion thereof at any time, provided that in case of a material reduction in the quality or the scope of the services rendered pursuant to the ProActive Support, StarWind shall arrange for a pro rated refund or a replacement of service of an equal value.
5. StarWind Warranties and Disclaimers
a) PROACTIVE SUPPORT IS PROVIDED “AS IS” AND “AS AVAILABLE.” STARWIND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THE PROACTIVE SUPPORT, ANY RELATED SERVICES OR THE CONTENT. STARWIND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF PROACTIVE SUPPORT. YOU ACKNOWLEDGE THAT ANY INFORMATION SENT MAY BE INTERCEPTED IN TRANSMISSION OR OTHERWISE. STARWIND DOES NOT WARRANT THAT PROACTIVE SUPPORT TOOLS OR MEANS OF ACCESS USED IN THE SERVICE HEREUNDER ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS. Except as agreed by StarWind in writing, contractors, agents, dealers or distributors of StarWind or any other third party shall not have a right to modify this limited warranty, nor to make any additional warranties
b) THE USE OF PROACTIVE SUPPORT IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. STARWIND ASSUMES NO LIABILITY FOR ANY DAMAGE CAUSED BY PROACTIVE SUPPORT IN THE ABSENCE OF ANY WILLFUL MISCONDUCT BY STARWIND OR IN CONNECTION WITH ANY SERVICES OR PRODUCTS OFFERED THROUGH THE PROACTIVE SUPPORT. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STARWIND OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY UNLESS OTHERWISE EXPRESSLY STATED IN THESE PAToS.
c) IN NO EVENT SHALL STARWIND OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION, OR BUSINESS INTERRUPTION), UNDER ANY THEORY OF LIABILITY, RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE PROACTIVE SUPPORT, ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION OR DATA, ANY INFORMATION THAT IS SENT OR RECEIVED, OR NOT SENT OR RECEIVED, ANY FAILURE TO STORE DATA, ANY LOSS OF DATA, LOSS OR DAMAGE TO FILES, LOSS OR DAMAGE TO THE CONTENT, OR ANY SERVICES AVAILABLE THROUGH PROACTIVE SUPPORT THAT ARE DELAYED OR INTERRUPTED, EVEN IF STARWIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST STARWIND PERTAINING TO OR IN CONNECTION WITH PROACTIVE SUPPORT MUST BE COMMENCED AND NOTIFIED TO STARWIND IN WRITING WITHIN SIX (6) MONTHS AFTER THE DATE THE CAUSE FOR ACTION AROSE.
d) Some jurisdictions do not allow the exclusion of implied warranties or limitations, so the above limitations may not apply to you.
6. User Warranties
a) YOU HEREBY WARRANT THAT: (i) ALL INFORMATION PROVIDED BY YOU TO STARWIND IN CONNECTION WITH PROACTIVE SUPPORT IS TRUE, CORRECT AND COMPLETE; (ii) YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THESE PAToS; (iii) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH STARWIND; (iv) YOU WILL SEEK ALL NECESSARY GOVERNMENTAL APPROVALS REQUIRED TO EFFECTUATE THESE PAToS; (v) YOU SHALL PERFORM ALL OF YOUR OBLIGATIONS UNDER THESE PAToS IN ACCORDANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS; AND (vi) YOUR BUG REPORTS DATA, LOGS, FEEDBACK, EDITORIAL, TEXT, GRAPHIC, AUDIOVISUAL, AND OTHER CONTENT AND DATA THAT IS MADE AVAILABLE BY YOU TO STARWIND IN CONNECTION WITH THE PROACTIVE SUPPORT DO NOT (1) INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, (2) CONSTITUTE DEFAMATION, LIBEL OR OBSCENITY, (3) RESULT IN ANY CONSUMER FRAUD, PRODUCT LIABILITY, BREACH OF CONTRACT TO WHICH YOU ARE A PARTY OR CAUSE INJURY TO ANY THIRD PARTY, (4) PROMOTE VIOLENCE OR CONTAIN HATE SPEECH, (5) VIOLATE ANY APPLICABLE LAW, STATUTE, ORDINANCE, OR REGULATIONS, INCLUDING ANY PRIVACY OR DATA LAW ORREGULATION, OR (6) CONTAIN ADULT CONTENT OR PROMOTE ILLEGAL ACTIVITIES.
b) Any and all items sent, received, downloaded, or purchased in connection with the ProActive Support may be subject to United States export controls. You acknowledge and agree that you are not nor will be at any time in the future (i) located in a country embargoed by the United States, (ii) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (iii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56 or any Executive Order of the President issued pursuant to such statutes; (iv) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons”; (v) an individual or a company that is on the U.S. Treasury Department’s list of Specially Designated Nationals; or (vi) on the United States Commerce Department’s Table of Deny Orders. By using the Website, Services, and Content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
a) You hereby agree to indemnify and hold harmless StarWind, its affiliates, officers, directors, agents, representatives, attorneys and employees, from any expense, loss, claim, damage, fine, penalty or liability, including reasonable fees for attorneys and other professionals, arising out of any judgment, verdict, court order, settlement, claim, demand, action, suit, arbitration, or other proceeding, including the assessment, claim or demand by a governmental agency or entity (“Damages”), arising out of your use of the ProActive Support except when such Damages arose solely as a result of StarWind’s willful misconduct.
a) Injunctive Relief. You acknowledge and agree that any violation or breach of these PAToS may cause StarWind immediate and irreparable harm and damages. As a result, StarWind has the right to, and may in its discretion, immediately obtain preliminary injunctive relief (including, without limitation, temporary restraining orders) and seek permanent injunctive relief regarding any violation or breach of these PAToS. In addition to any and all other remedies available to StarWind in law or in equity, StarWind may seek specific performance of any term in these PAToS.
b) Force Majeure. StarWind will not be liable for any nonperformance, delay, error, data loss or other loss caused by any events or conditions that are beyond the reasonable control of StarWind.
c) Assignment. StarWind may assign or delegate these PAToS, in whole or in part, to any person or entity at any time with or without your consent. You, however, may not assign or delegate any rights or obligations under these PAToS without StarWind’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.
d) Severability. These PAToS will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of these PAToS are held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (ii) such invalidity or unenforceability will not affect any other provision of these PAToS.
e) Survivability. Notwithstanding any provisions to the contrary herein, the provisions of Sections 2(b)-(c), 2(e)-(g), 3, 5-8 shall survive the termination or expiration of these PAToS and such termination or expiration shall not release you or StarWind of their respective obligations regarding your obligations with respect to intellectual property rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination.
f) Governing Law. These PAToS shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law rules and principles. These PAToS shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. StarWind does not bear any responsibility nor assumes any risks if by any reason the ProActive Support made available to the user is non-compliant with any national law of any country other than the USA.
Copyright © 2018 StarWind Software Inc. All rights reserved. The StarWind ProActive Support, website and any services provided herein and accompanying products and documentation are the copyrighted property of StarWind Software Inc. and/or its licensors and protected by copyright laws and international intellectual property treaties. StarWind® and related logo, and all related product and service names, design marks and slogans are the trademarks and/or registered trademarks of StarWind Software Inc. All other product and service marks contained herein are the trademarks of their respective owners. Any use of the StarWind, Inc or third party trademarks or logos without the prior written consent of StarWind Software Inc. or the applicable trademark owner is strictly prohibited.