LICENSEE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHETHER LICENSEE ACCESSES OR OBTAINS EVALUATION SOFTWARE DIRECTLY FROM https://www.starwindsoftware.com/, OR THROUGH ANY OTHER SOURCE. BY USING, INSTALLING, AND/OR OPERATING EVALUATION SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. LICENSEE WILL HAVE THE OPPORTUNITY TO ACCEPT THIS OFFER OF AGREEMENT THROUGH A CLICK-THROUGH PROCEDURE. IF LICENSEE DOES NOT WISH TO ACCEPT THE TERMS OF THIS AGREEMENT AND/OR TO DECLINE THIS AGREEMENT, LICENSEE SHALL NOT USE, INSTALL, OR OPERATE THE EVALUATION SOFTWARE. IF LICENSEE CHOOSES TO ACCEPT THE TERMS OF THIS AGREEMENT, LICENSEE MAY DO SO BY CHECKING “I AGREE” USING THE DESIGNATED CHECK BOX, LICENSEE’S CLICK OF THE “I AGREE TO TERMS OF THIS AGREEMENT” BUTTON IS A SYMBOL OF LICENSEE’S SIGNATURE AND BY CLICKING ON THE “I AGREE TO TERMS OF THIS AGREEMENT” BUTTON, LICENSEE CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AND AGREES THAT THIS AGREEMENT IS ENFORCEABLE AGAINST LICENSEE PURSUANT TO ITS TERMS TO THE SAME EXTENT AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN LICENSEE SHOULD NOT OPERATE THE EVALUATION SOFTWARE AND LICENSEE WILL NOT BE ALLOWED TO USE, INSTALL, OR OPERATE THE EVALUATION SOFTWARE. FOR AVOIDANCE OF DOUBT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, STARWIND RESERVES THE RIGHT TO REFUSE ACCEPTING THIS AGREEMENT AND NOT TO PROVIDE LICENSEE WITH THE RIGHT TO USE, INSTALL, OR OPERATE THE EVALUATION SOFTWARE AS CONTEMPLATED HEREUNDER FOR ANY REASON OR NO REASON.
Definitions.
Each of the expressions indicated below will have, in this Agreement, the meaning assigned to it, namely:
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“Account Manager” shall mean the point of contact provided by StarWind to manage Licensee’s account and support requests and identified as the Account Manager. StarWind may change the Account Manager in its sole discretion by giving notice to Licensee.
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“Affiliate” shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person; “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
- “Business Hours” shall mean:
- If Licensee is located in EMEA: Monday-Friday, 8 AM – 5 PM GMT.
- If Licensee is located in NA/LAD: Monday- Friday, 9 AM – 6 PM EST.
- If Licensee is not located in EMEA/NA/LAD: StarWind will provide Business Hours.
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“Confidential Information” shall mean any information, Evaluation Software, document or other material of any nature relating to or concerning StarWind or Licensee and/or their Affiliates, that is provided or made available to receiving Party either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer object code or source code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, Evaluation Software or Evaluation Software development strategies or plans, information concerning current and future Evaluation Software and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of StarWind or Licensee and/or their Affiliates and any other business records and information, including without limitation the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of disclosing Party, including information of third parties subject to confidentiality obligations and which one Party may share with the other Party, provided, however, that Confidential Information shall not include information which: (i) is already in the possession of receiving Party before receipt from disclosing Party; (ii) is or becomes rightfully in the public domain without fault of disclosing Party; (iii) is received by receiving Party from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality. If a Party asserts one of the four exceptions to Confidential Information above, then such Party shall prove such assertion by proper forms of documentary evidence.
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“Documentation” shall mean user manuals, training materials, Evaluation Software descriptions and specifications, technical manuals, supporting materials, maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with the Evaluation Software, provided or made available by StarWind from time to time.
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“Effective Date” shall mean the date StarWind approves licensee’s offer of agreement and licenses the Evaluation Software hereunder to Licensee.
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“Evaluation Software” shall mean Software licensed hereunder and having functionalities as set forth in Exhibit A hereto that contain StarWind software and all related Documentation included therewith in any form and on any media and all fixes, Updates, modifications, enhancements and new releases of the foregoing and those related materials used in connection therewith.
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“Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to Evaluation Software, Confidential Information, and StarWind Marks and may include, without limitation: (a) All right, title and interest in and to all patents and all filed, pending, or potential applications for patents, including any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed (b) All right, title and interest in and to all trade secrets and all trade secret rights and equivalent rights arising under the common law, state law, federal law of the United States of America, and laws of foreign countries; (c) All right, title and interest in and to all mask works, copyrights, other literary property or author’s rights, including source code, whether or not protected by copyright or as a mask work, under common law, state law, federal law of the United States of America, and laws of foreign countries; and (d) All right, title and interest in and to all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and/or brand names under common law, state law, federal law of the United States of America, and laws of foreign countries.
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“License Registration Key” shall mean, as applicable, the license file, a serial number provided by StarWind containing a unique License ID and/or other information that enables Licensee to activate and Use the Evaluation Software.
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“Operate” shall mean accessing, downloading, storing, loading, installing, executing, displaying, and copying the Documentation and Evaluation Software into the memory of a computer or otherwise benefiting from using the functionality of the Evaluation Software in accordance with the Documentation.
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“Person” means any individual, partnership, limited liability licensee, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
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“StarWind Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, Evaluation Software, ventures and services of StarWind or any of its Affiliates, together with any modifications to the foregoing made by such parties during the Term of this Agreement.
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“Updates” shall mean new versions of the Evaluation Software provided by StarWind and to be implemented by Licensee.
License and Appointment of Licensee.
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Single Evaluation License Grant for Evaluation Software. StarWind grants to Licensee the following rights and privileges (the “Evaluation License”) and Licensee hereby accepts such Evaluation License:
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a worldwide, limited, non-assignable, non-exclusive, and non-transferable license to Operate the Evaluation Software pursuant to this Agreement, subject to any restrictions imposed by the License Registration Key, and all other applicable documentation, including, without limitation the Terms of Use located at https://www.starwindsoftware.com/terms and the Privacy Policy located at https://www.starwindsoftware.com/privacy-policy, which are incorporated herein by reference;
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for a maximum of thirty (30) days from access to the Evaluation Software being granted to Licensee (“Evaluation Period”), or as otherwise agreed to by StarWind in writing.
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No Production Environment; Evaluation Only. The Evaluation Software shall not be used in a production environment. Evaluation software must be used ONLY for evaluation and testing purposes and NOT for any commercial purpose. Licensee must not use evaluation software to operate with important and/or critical data.
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No Updates. The Evaluation License does not entitle Licensee to any Updates and nothing herein shall obligate StarWind to provide Updates for the Evaluation Software.
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Obtaining License from a Reseller. When receiving an Evaluation License from an authorized distributor, reseller, or other third party (“Reseller”), Licensee acknowledges that the license it receives from Reseller may be conditional on the license grant from StarWind or a valid distribution/reseller agreement with StarWind or its Affiliates and that, notwithstanding any representations, warranties, and/or covenants by the Reseller to the contrary, Reseller cannot grant to Licensee license rights greater than Reseller received from such entity.
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No Free License. After configuration in accordance with Section 3.7 hereof, StarWind software licensed pursuant to an Evaluation License may not work with free license keys provided by StarWind without further reinstallation and full reconfiguration of the operating system.
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Support. The Evaluation Software is supported during Business Hours through a StarWind Account Manager assigned by StarWind. All Technical Support requests must be addressed to the Account Manager in a manner determined by StarWind from time to time.
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Attribution Notices. Licensee may Operate the Evaluation Software, pursuant to the terms and conditions hereto, provided that all the Evaluation Software shall (i) retain all electronic prominent copyright notices referring to StarWind as originally placed by StarWind (e.g. “Copyright © 2021 StarWind Software, Inc. All rights reserved”) and contain “Powered by StarWind: StarWind Software, Inc.” notices, and (ii) Licensee shall not mask, frame, overlay, impair or otherwise materially alter, affect or impair such notices.
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Additional Protection Measures and Statistical Information. To the extent permitted under applicable law, solely for the purpose of preventing unlicensed use of the Evaluation Software, the Evaluation Software may install on Licensee’s computer(s) and/or device(s) technological measures that are designed to prevent unlicensed use, and StarWind may use this technology to confirm that Licensee has a licensed copy of the Evaluation Software. The Evaluation Software may also collect statistical information about usage scenarios, including information about used file types, file sizes, amounts of processed data, etc. The update of these technological measures may occur through the installation of Updates.
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Third Party Software and/or Third-Party Hardware. In order to Operate the Evaluation Software, Licensee may require additional third-party software or hardware which is not licensed hereunder and not under StarWind’s control and may be subject to third party terms and fees. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant Licensee any rights or licenses with regard to such third-party software and/or third-party hardware or to entitle Licensee to use such third-party software and/or third-party hardware and Licensee shall be solely responsible for obtaining and maintaining such third-party licenses. All third-party software and/or third-party hardware licensors retain all right, title, and interest in and to such third-party software and/or third-party hardware.
Licensee’s Obligations.
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StarWind Intellectual Property. Licensee agrees that all right, title, and interest in and to Evaluation Software, including Updates, modifications, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of StarWind. Except as otherwise specifically provided in this Agreement, Licensee does not acquire any right to use, disclose, copy, reproduce, publish, or distribute the Evaluation Software or StarWind Marks and the order of, delivery to, or payment for Evaluation Software does not convey any other license, expressly or by implication, under any Intellectual Property Rights owned by StarWind, including without limitation, the right to produce, modify or enhance any Evaluation Software.
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Sublicense; Assignment. Licensee agrees not to sell, loan, rent, lease, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Evaluation Software, any copy or use thereof, in whole or in part, without StarWind’s prior written consent. This Agreement and the rights and duties granted hereunder, including without limitation any Evaluation Licenses granted hereunder, may not be assigned, in whole or in part, by Licensee without the prior written consent of the StarWind. StarWind shall have the right to assign this Agreement without Licensee’s prior consent.
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Confidential Information. Licensee shall keep Confidential Information of StarWind in strict confidence and shall not make use of Confidential Information for any purpose other than in connection with this Agreement and to implement reasonable security measures to protect such Confidential Information, but without limitation to the foregoing, shall use best efforts to maintain the security of any license registration key(s) provided to Licensee by StarWind and/or its authorized resellers or distributors. Licensee shall notify StarWind if disclosure of Confidential Information is necessary to comply with the requirements of any law, government order, regulation, or legal process prior to such disclosure and Licensee, at StarWind’s request, shall use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information.
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No Disparagement. Licensee agrees that he/she/it will not, directly or indirectly, individually or in concert with others, engage in any conduct or make any statement that is likely to have the effect of undermining or disparaging the Evaluation Software, the reputation of StarWind, or its goodwill, products, or business opportunities or that is likely to have the effect of undermining or disparaging the reputation of any officer, director, agent, representative, or employee, past or present, of StarWind.
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Proper Consents. Licensee will ensure that each member of Licensee’s organization (including employees and contractors) about whom personal data may be provided to StarWind has given his or her express consent to StarWind’s processing of such personal data. Any personal data provided to StarWind shall be processed according to the Privacy Policy located at https://www.starwindsoftware.com/privacy-policy.
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Regular Backups. Licensee is solely responsible for its data. Licensee must perform a successful and verified backup of its data before StarWind or a third party performs any remedial, upgrade, or other work on Licensee’s production systems. If applicable law prohibits exclusion of liability for lost data, then StarWind shall only be liable for the cost of the reasonable effort under industry standards to recover the lost data from Licensee’s last available backup.
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System Requirements and Best Practices. The installation and configuration of the Product shall be performed strictly in accordance with and pursuant to StarWind’s configuration and best practices as further detailed at: https://www.starwindsoftware.com/system-requirements and/or https://www.starwindsoftware.com/resource-library/starwind-virtual-san-best-practices. Configuration Support is offered pursuant to Section 2.6.
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Additional Obligations. Except as otherwise expressly set forth in this Agreement, Licensee, without StarWind’s advance written consent, shall not: (a) modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer any of the Evaluation Software, or any part thereof, or to attempt to derive the source code or the underlying ideas, algorithms, structure, or organization from the Evaluation Software, including through the use of a “clean room” as that term is understood in the software industry; notwithstanding the foregoing, decompiling software is permitted to the extent the laws of the Licensee’s jurisdiction give Licensee the explicit and non-waivable right to do so to obtain information necessary to render the Evaluation Software interoperable with other software; provided, however, that Licensee must first request such information from StarWind and StarWind may, in its discretion, either provide such information to Licensee (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such Operation of the Evaluation Software to ensure that StarWind’s proprietary rights in the Evaluation Software are protected. Except for the modification explicitly permitted hereunder, Licensee may not modify or create derivative works based upon the Evaluation Software in whole or in part; (b) reproduce or copy any Evaluation Software except as otherwise expressly provided herein or adapt in any way, modify, insert, delete, replace, change, prepare, or create derivative works or otherwise alter any files in the Evaluation Software (except as such files may be modified as an incidental effect of the normal installation process); (c) use any portion of the Evaluation Software as a stand-alone application or with applications other than the Evaluation Software; or (d) attempt to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Evaluation Software, including without limitation any such mechanism used to restrict or control the functionality of the Evaluation Software, without prior written approval from StarWind which can be withheld at StarWind’s sole discretion.
Representations, Warranties, and Covenants.
Licensee represents, warrants, and covenants that:
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in using the Evaluation Software, Licensee’s and its users actions shall not contravene all applicable laws, rules, or regulations, including those of (1) the country, state, or locality where Licensee resides, and (2) the country, state, or locality where StarWind is located or operates;
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he/she/it will neither Operate or Use the Evaluation Software for the purpose of circumventing a technological measure nor will it Operate or Use the Evaluation Software in conjunction with a third-party application for the purpose of circumventing a technological measure that effectively protects a right of a copyright owner in a copyrighted work or a portion thereof;
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the execution, delivery and performance by Licensee of this Agreement do not and shall not violate any law (including, without limitation, privacy, export control, obscenity and anti-spam laws), violate any charter document of Licensee, violate any agreement or order to which Licensee is a party or by which Licensee or its assets are bound, or require any consent from any Person; and
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Licensee and/or his, her, or its representatives, if any, are not and will not be at any time during the Term be: (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) named on the U.S. Treasury Department’s list of Specially Designated Nationals (SDN); or (vi) named on the United States Commerce Department’s Table of Deny Orders.
Miscellaneous.
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Personal Information. In the event that Licensee provides the personal information of any individual to StarWind, such information shall be processed according to StarWind’s current privacy policy, found at https://www.starwindsoftware.com/privacy-policy.
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Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Evaluation Software in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts located in Boston, Massachusetts shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.
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Remedies. If Licensee breaches, or threatens to commit a breach of any of the representations, warranties, and/or covenants set forth herein, StarWind will be entitled, in addition to any other rights StarWind may enjoy, to obtain injunctive or other equitable relief by any court of competent jurisdiction to restrain any actual or threatened breach or otherwise to specifically enforce the provisions of this Agreement.
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No reliance. Licensee may not rely, or base purchasing decisions, on Evaluation Software being or becoming generally available.
Disclaimer; Limitation of Liability; Indemnity.
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Licensee’s Use or Operation of the Evaluation Software is At Your Own Risk, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EVALUATION SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, AVAILABILITY, ACCEPTABLE QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT
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LIMITATION OF LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. LICENSEE ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM LICENSEE’S USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STARWIND OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT. SHOULD LICENSEE GRANT ANY ACCESS TO STARWIND TO ANY OF LICENSEE’S ASSETS OR PREMISES FOR PURPOSES OF SERVICE, CONFIGURATION OR INSTALLATION, STARWIND SHALL NOT BE LIABLE AND DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM SUCH ACCESS. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
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Indemnity. Licensee shall indemnify, protect, defend and hold harmless StarWind, its Affiliates, and its agents, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with this Agreement, the Evaluation Software, and Licensee’s Use or Operation of the Evaluation Software or authorization of another to do so. If any action or proceeding is brought against StarWind by reason of any of the foregoing matters, Licensee shall upon notice defend the same at Licensee’s expense by counsel reasonably satisfactory to StarWind and StarWind shall cooperate with Licensee in such defense at StarWind’s sole discretion.
Modification and Termination.
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Termination. StarWind may modify or discontinue Licensee’s use or Operation of the Evaluation Software at any time and for any reason, or for no reason, at its sole discretion. StarWind may terminate this agreement, or any portion hereof, at any time and for any reason, or no reason.
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Actions upon Termination. In the event of termination and/or expiration of this Agreement and/or the Evaluation Period:
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The functionally of the Evaluation Software may become limited and/or blocked, which may lead to inaccessibility of the data, related and/or operated by/with the Evaluation Software;
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Licensee shall as soon as practicable, destroy, uninstall, delete, or return to StarWind all of StarWind’s Confidential Information in Licensee’s possession or under its control and all and every part of the Products and all copies thereof, including, without limitation, any copies installed on any hard-drive or other fixed, electronic, optical, magnetic or other media and any authorized or unauthorized modifications of the Evaluation Software, and any software into which the Evaluation Software have been merged (except that if destruction of such software shall be precluded by written agreement, then it shall remove and destroy the software to the extent so merged with or incorporated within any such software) or as contained in any other form or media; and
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upon termination of this Agreement Licensee will no longer be authorized to Operate or use the Evaluation Software in any way.
EXHIBIT A
Evaluation Software Products
StarWind Software Products: https://www.starwindsoftware.com/download-starwind-products
