STARWIND® TERMS OF USE AND SERVICES

a) Generally. These Terms of Use and Services (the “Agreement” or “Terms of Use”) 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 https://www.starwindsoftware.com/ and other related websites owned and/or operated by StarWind (together, the “Website”) and any and all services provided by StarWind to you either in connection with the Content, as defined below, Website or any of StarWind’s products. StarWind makes the Website, including all content, information, graphics, documents, text, products, and all other elements and products offered through the Website, as made available by StarWind and/or its authorized distributor(s) (collectively, the “Content”), available for your use subject to the terms and conditions set forth in this document. By accessing and using the Website and Services, you agree to be bound by and to accept these Terms of Use and all terms and conditions contained and/or referenced herein as well as any additional terms and conditions set forth on the Website.

b) Applicability to Website and Services. If you do NOT agree to all the terms and conditions in these Terms of Use, you should NOT use the Website or Services. If you do NOT agree to any additional specific terms which apply to particular Content or to a particular transaction concluded through the Website or Services, then you should NOT use the part of the Website or Services which contains such Content or through which such transactions are concluded. You may access and use the Content solely for your own benefit and only in accordance with this Agreement. Also, when you use any current or future StarWind service or visit StarWind’s Website or obtain any products, applications or services, whether free of charge or for payment, provided by StarWind, you will be subject to the guidelines and conditions applicable to such products or services.

c) Updates to Terms of Use. These Terms of Use may be amended by StarWind at any time upon notice provided by any of the following means: through a posting on the main page of the Website, at or after you login into your User Account (as defined below), or 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 will not obviate your responsibility to comply with these Terms of Use as amended from time to time. Please check these Terms of Use regularly to ensure that you are aware of all terms governing your use of the Website and Services. Specific terms and conditions may apply to non-user generated Content. Such specific terms may be in addition to these Terms of Use or, where inconsistent with these Terms of Use such specific terms will supersede these Terms of Use only to the extent that the content or intent of such specific terms is inconsistent with these Terms of Use.

StarWind reserves the right to make changes or updates with respect the Content or the format thereof at any time without notice. StarWind also reserves the right to terminate or restrict your access to the Website and Services or any portion thereof for any reason whatsoever 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 an unused portion of any fees paid to StarWind.

a) You agree to use the Website and Services only for purposes permitted by these Terms of Use as well as any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. 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 WEBSITE AND SERVICES DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS. Specifically, you agree and warrant that in using the Website and Services, 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 StarWind is located or operates. This includes complying with applicable export and import restrictions as well as other restrictions.

b) StarWind has the right to verify your compliance with this Agreement. If StarWind seeks to verify that 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 the Website, Services, and Content. You may not block or interfere with that monitoring. If StarWind reasonably believes a problem with the Website, Services, and/or Content may be attributable to your content or your use of the Website, Services, and/or Content, as applicable, you will cooperate with StarWind to identify the source of and resolve that problem.

c) You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may: (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights; or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to StarWind under the Agreement, StarWind reserves the right to remove or disable access to any material that violates the foregoing restrictions. StarWind shall have no liability to you in the event that StarWind takes such action. You agree to defend and indemnify StarWind against any claim arising out of a violation of your obligations under this section.

d) You agree not to access (or attempt to access) the Services by any means other than through the means provided by StarWind or its authorized partners. You agree not to access (or attempt to access) the Services by way of automated means and that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).

e) If and when user purchases any StarWind product or Service or any license to any of StarWind’s software products, user agrees to perform any and all obligation and to be in strict compliance with the representations, warranties and covenants of the applicable end user and/or licensing agreement relating to such product and service.

(f). You agree that you will not:

g) The rights granted to you under the agreement are also conditioned on the following:

a) All materials, documents, communications, or information submitted to, sent through, or stored on the Website and Services by you will be subject to these Terms of Use and Privacy Policy located at https://www.starwindsoftware.com/privacy-policy. The security of such information is very important to StarWind. StarWind’s Privacy Policy is subject to change at StarWind’s discretion; however, StarWind’s policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the Services have been paid. StarWind reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.

b) You agree to provide any notices and obtain any consents related to your use of the Services and StarWind provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

c) StarWind respects your privacy and the use and protection of your personal information. Please see our Privacy Policy for important information and disclosures relating to the collection and use of your personal information in connection with your use of this Website.

a) StarWind may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve your StarWind service requests. The tools will not collect, report, or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the Services provided. 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 management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the Agreement.

b) StarWind may compile statistical information related to the performance of the Services, 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.

a) The term of these Terms of Use (“Term”) shall begin when you start using the Website or Services (after agreeing to an Ordering Document) and shall continue in perpetuity unless otherwise terminated by StarWind or you by written notice provided that these Terms of Use shall be deemed automatically terminated upon your breach of any material term hereof. StarWind reserves the right to change, suspend or discontinue the Services or any portion thereof, at any time. Without prejudice to any other rights, these Terms of Use will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of these Terms of Use, you must immediately cease using this Website and the Services including without limitation any use of StarWind’s trademarks, trade names, copyrights, and other intellectual property.

b) These Terms of Use will continue to apply until terminated by either you or StarWind as set out above. If you want to terminate this Agreement with StarWind (i.e. these Terms of Use), you may do so by notifying StarWind at any time in writing support@starwind.com. StarWind reserves the right to terminate these Terms of Use with you at its own discretion at any time, upon notice, and without any liability to StarWind whatsoever.

c). You are solely responsible for cancelling your User Account, which you may do by contacting StarWind at support@starwind.com.

a) The Website and Services may include links to other Website and/or third party products and that are not under StarWind’s control (collectively, “Third Party Materials”). Third Party Materials that may be appropriate or necessary for use with some StarWind programs are specified in the program documentation, as applicable. Your right to use such Third Party Materials is governed by the terms of the Third Party Materials license agreement specified by StarWind and not under the Agreement. StarWind shall not be responsible in any way for such Third Party Materials. StarWind provides such links only for the convenience of the users of the Website and Services, and the inclusion of any link to any Third Party Materials does not imply endorsement by StarWind of the content, products and/ or services of such Third Party Materials. Notwithstanding any provision to the contrary herein, nothing in these Terms of Use shall be construed as to grant you any rights or licenses with regard to such Third Party Materials or to entitle you to use such Third Party Materials.

b) Linking to this Website is permitted provided that you comply with the following rules. You may link to the home page of this Website or to any other page of this Website. However, you are not allowed to use in-line linking (or hot-linking) or framing. You must not imply that StarWind endorses or sponsors the linker or its website, products or services. You must not use StarWind’s intellectual property including but not limited to trademarks, trade names, copyrights without advance written permission from StarWind. Furthermore, you agree to remove the link at any time upon StarWind’s request.

a) Copyright, trademark, and all other proprietary rights on the Website, Services, and Content (including but not limited to software, services, audio, video, text and photographs, but excluding User Content defined below) rest with StarWind and/or its licensors. Unless otherwise specifically provided herein or authorized by StarWind in writing, all rights in the Website, Services, and Content not expressly granted herein are reserved. You agree not to copy, republish, frame, or make available for download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Content, Website, or Services, other than in conjunction with the Services offered by StarWind through the Websites. You agree also that all software Services shall (i) retain all electronic prominent copyright notices referring to StarWind as originally placed, if and as applicable, by StarWind (e.g. “Copyright © 2018 StarWind Software Inc. All rights reserved”) and/or contain “Powered by StarWind: StarWind Software Inc.” notice, as applicable, and (ii) you shall not mask, frame, overlay, impair or otherwise materially alter, affect or impair such notices and shall place copyright notices in its marketing of the StarWind Services.

b) StarWind hereby disclaims any rights to trademarks, service marks, trade names, logos, copyright, patents, domain names or other intellectual property interests of third parties. All intellectual property interests of third parties referenced herein, including without limitation Third Party Materials or otherwise provided on this Website are the properties of their respective owners. StarWind disclaims any proprietary interests in the intellectual property rights other than their own.

a) ALL CONTENT AND/OR SERVICES ARE 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 THIS WEBSITE, SERVICES OR THE CONTENT. STARWIND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF THE STARWIND WEBSITE, SERVICES, OR CONTENT. YOU ACKNOWLEDGE THAT ANY INFORMATION SENT MAY BE INTERCEPTED IN TRANSMISSION OR OTHERWISE. STARWIND DOES NOT WARRANT THAT THE WEBSITE, SERVICES, CONTENT, OR THE SERVERS WHICH MAKE THIS WEBSITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY STARWIND 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 THE WEBSITE, SERVICES, OR CONTENT, OR THE DOWNLOADING OR OTHER USE OF ANY PRODUCTS THROUGH THE WEBSITE 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 COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE WEBSITE OR IN CONNECTION WITH ANY SERVICES OR PRODUCTS OFFERED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STARWIND OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE.

c) The Website and Services may contain references to specific StarWind products and Services that may not be available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country.

d) You understand and agree that by using the Website and Services, you may be exposed to content that you may find offensive, indecent or objectionable and that, in this respect, you use the Website and Services at your own risk.

e) 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 THE WEBSITE, OR SERVICES OR THE CONTENT, PRODUCTS, SERVICES, STATEMENTS, OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THE WEBSITE AND SERVICES, 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 THE WEBSITE 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 THE WEBSITE AND SERVICES MUST BE COMMENCED AND NOTIFIED TO STARWIND IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.

f) Some jurisdictions do not allow the exclusion of implied warranties or limitations, so the above limitations may not apply to you.

a) YOU HEREBY WARRANT THAT: (i) ALL INFORMATION PROVIDED BY YOU TO STARWIND IN CONNECTION WITH THE WEBSITE, SERVICES, AND CONTENT IS TRUE, ACCURATE, CORRECT, AND UP-TO-DATE; (ii) YOU HAVE FULL POWER AND AUTHORITY TO ENTER INTO THESE TERMS OF USE; (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 TERMS OF USE; (v) YOU SHALL PERFORM ALL OF YOUR OBLIGATIONS UNDER THESE TERMS OF USE 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 USERS OF THIS WEBSITE OR PROVIDED TO STARWIND 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, OR (6) CONTAIN ADULT CONTENT OR PROMOTE ILLEGAL ACTIVITIES.

b) Any and all items sent, received, downloaded, or purchased from the Website and Services 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) If and as available, you may sign up for a personalized account (“User Account”) with StarWind in order to access the full range of features offered by the Website and Services. In creating your User Account, you agree to submit accurate, current and complete information about yourself and keep this information updated. StarWind reserves the right to suspend or terminate User Accounts which it suspects are used in contradiction to these Terms of Use and/or contain information that is untrue, inaccurate, not current or incomplete.

b) When you create your User Account, you will choose a personal, non-transferable password. User Accounts may not be “shared” or used by more than one individual. After you accept these Terms of Use and your User Account registration has been accepted by StarWind, your User Account will be established. You are solely responsible for any and all activities that occur under your User Account, whether or not such use was authorized by you.

c) You may also, as applicable and made available, access the Website and Services by logging in using an authorized third party social network account, such as a Facebook or Twitter account. By doing so, you authorize StarWind to collect your personal profile and activity information from that third party social network.

d) Please note that if you opt to use your Facebook account to login to our Website and/or use our Services, StarWind is able to access all of your data in connection with your Facebook account, including, without limitation your friends list, pictures you posted or those posted of you on Facebook, businesses and stories you “liked,” places you visited, etc.

e) This information you provide is used for such purposes as allowing you to set up a User Account and profile that can be used to interact with other users through the Service, improving the content of the Service, customizing the advertising and content you see, and communicating with you about specials and new features. It is completely optional for you to engage in these activities and/or make any purchases from StarWind.

f) Please read our Privacy Policy located at https://www.starwindsoftware.com/privacy-policy which describes how StarWind collects, uses, discloses, manages and stores your personally identifiable information (“Personal Information”). You agree and understand that you are responsible for maintaining the confidentiality of all user names and passwords associated with any User Account you use to access the Website and Services. Additionally, you may not use a User Account that belongs to someone else at any time without the permission of that account holder. StarWind is not liable for any harm caused or related to the theft or misappropriation of your user name, password, User Content, disclosure of your user name or password, or your authorization of anyone else to use your user name or password. However, you could be held liable for losses incurred by StarWind, another user or any third party due to misappropriation and use of your User Account. If you become aware of any unauthorized use of your User Account, please notify StarWind immediately at support@starwind.com.

a) When permitted and as applicable, User Account holders may upload, store or transfer files, videos, pictures, data, information, and other material through the Website and Services (“User Content”). StarWind does not own any User Content and does not monitor, edit, or disclose any information regarding you or your User Account without your prior permission, except in accordance with these Terms of Use or Privacy Policy located at https://www.starwindsoftware.com/privacy-policy. StarWind also does not, as a matter of practice, review, inspect, edit or monitor any User Content posted, stored, or accessed by you or any other user of the Website or Services. However, StarWind reserves the right, solely upon its own discretion, to refuse, remove, or disable access to User Content that StarWind learns may be illegal or may violate the terms of these Terms of Use, although it has no obligation to do so. StarWind’s action or inaction to regulate content or conduct or to enforce against any potential violation of these Terms of Use by any user (or any other third party) does not waive StarWind’s right to implement or not implement regulation or enforcement measures with respect to any subsequent or similar content, conduct, or potential Terms of Use violation.

b) StarWind does not control, is not responsible for, and makes no representations or warranties with respect to any User Content. You are solely responsible for your access to, use of and/or reliance on any User Content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research, and due diligence with respect to any User Content. It is your responsibility to investigate the licensing of any User Content prior to using such User Content in any way and to ensure that your use of any such User Content complies with all applicable laws, licensing requirements and does not infringe third parties’ proprietary rights. You are also responsible for any content that you post or transmit as well as all content posted or transmitted through or by use of your User Account.

c) Content prohibited from the Website and Services include but is not limited to: (1) illegal content; (2) content relating to the creation, advertising, distribution, or receipt of illegal goods or services; (3) offensive content (including, without limitation, defamatory, threatening, or pornographic content); (4) content that discloses another person’s personal, confidential, or proprietary information; (5) fraudulent content; (6) malicious content such as malware or spyware; and (7) content that offers, promotes, advertises or provides links to unsolicited products or services.

a) The Website and Services may allow you to communicate with other users. Discretion should be used when disclosing any information through these means, as it may be accessed by third parties. Use of any personally identifiable information, and your options regarding our use of this information, are subject to StarWind’s Privacy Policy located at https://www.starwindsoftware.com/privacy-policy.

b) StarWind reserves the right to modify and/or delete any message submitted by users, at its sole discretion, at any time and for any reason, including, but not limited to material which in StarWind’s opinion:

a) Injunctive Relief. You acknowledge and agree that any violation or breach of these Terms of Use 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 Terms of Use. 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 Terms of Use.

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 Terms of Use, 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 Terms of Use without StarWind’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

d) Severability. These Terms of Use will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of these Terms of Use are held to be invalid or unenforceable under applicable law to any extent, then (a) 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 (b) such invalidity or unenforceability will not affect any other provision of this Agreement.

e) Survivability. Notwithstanding any provisions to the contrary herein, the provisions of Section 3(e), 6, 8, 9, 10, 11, 12, 18, 19, 20, and 21 shall survive the termination or expiration of this Agreement 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 Terms of Use 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. 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 excluded.