PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE SOFTWARE.
IMPORTANT - READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
PREAMBLE: VINCHIN BACKUP & RECOVERY is a SOFTWARE PRODUCT protected by copyright and intellectual property laws and treaties. This SOFTWARE PRODUCT and the accompanying documentation is licensed, not sold, to the End User pursuant to the terms and conditions of this End User License Agreement ("EULA").
1. DEFINITIONS
"Product" is the object code of the software and all accompanying Documentation delivered by Vinchin, including all items delivered under Support.
"License" means a license granted under Section 2 (LICENSE GRANT)
"Documentation" means the technical publications relating to the software, such as release notes, reference, user, installation, systems administrator and technical guidelines, included with the Product.
"Transaction" is a License transaction pursuant to which End User a) accepts this EULA as provided above and b) takes actual or constructive possession of the Software. A Transaction may take place by any lawful means, electronically or in writing, and may be confirmed by purchase orders, credit orders, commitment letters, license keys and amendments to this EULA or other similar materials. A Transaction may be initiated and implemented by any entity that is directly or indirectly a party to it, including End User, Vinchin, or authorized third party distributors, dealers, and/or other resellers of the Software.
2. LICENSE GRANT
When the Software is delivered to you as part of a Transaction, you will have, subject to the terms and conditions of this EULA, a perpetual, non-transferable, non-exclusive, license (“License”), to use the Software and Documentation, solely for your internal business purposes for the management and processing of its own data and not the data of any third party(ies). Vinchin Software License is perpetual, unless the Software is delivered to you as part of a Transaction on a non-perpetual basis for a defined period, in such case, your right to use such Software will cease on the end date of the defined period.
3. EVALUATION LICENSE & FREE LICENSE
Vinchin may determine, in its sole discretion, to make products available to you without any Transaction and without charge. Such products (a) are provided to you for non-commercial evaluation or demonstration purposes only. and (b) are provided "AS IS" and without any warranty or support; and (c) cannot be put into productive use or included as part of your business processes in any manner, unless or until they are expressly licensed and paid for under a Transaction. Vinchin may terminate all of your rights and licenses to these products for Vinchin's convenience upon notice to you.
4. RESTRICTIONS
You will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices ("Identification") from any Product; (c) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (d) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (e) distribute, rent, lease, sublicense or provide the Product to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (f) provide a third party with the results of any functional evaluation, or performance tests, without Vinchin's prior written approval; (g) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (h) violate any other usage restrictions contained in the Documentation.
5. OWNERSHIP
The Software and Documentation, all copies and portions thereof, and all improvements, enhancements and modifications thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Vinchin. Your rights to use the Software and Documentation shall be limited to those expressly granted in this EULA and any applicable Transaction. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this EULA or the applicable Transaction. Vinchin reserves all rights not expressly granted to you. Vinchin does not transfer any ownership rights in any Software.
6. AUDIT
During the term of this Agreement and for a period of one year thereafter, Vinchin may notice to you during normal business hours and upon reasonable prior, inspect your files, computer processors, equipment and facilities to verify your compliance with this EULA.
7. LIMITED WARRANTIES
(a) Vinchin warrants that the Licensed Software as delivered by Vinchin and when used in accordance with the Documentation shall substantially conform with the Documentation for a period of ninety (90) days from purchase and that the media upon which the Licensed Software is furnished to you shall be free from defects in material and workmanship under normal use during such ninety day period. Excluded from the foregoing warranty are defects resulting from accident, misuse, unauthorized repair, modification, enhancement or misapplication.
(b) For any Licensed Software that does not operate as warranted in Section 7(a) above, Vinchin shall, at its sole discretion, repair the Licensed Software, replace the Licensed Software with software of substantially the same functionality, or terminate the license and refund the relevant license fee paid for such non-compliant Licensed Software, provided that you return the Licensed Software to Vinchin or its authorized reseller from whom you obtained it, together with the purchase receipt within the warranty period.
(c) Vinchin shall not be obligated to provide any updates for the Licensed Software.
(d) THIS PRODUCT IS PROVIDED TO YOU "AS IS." VINCHIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFICIENCIES IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, VINCHIN DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF USE OF THE LICENSED SOFTWARE OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VINCHIN OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY, WHETHER EXPRESS OR IMPLIED, OR IN ANY WAY ALTER THE SCOPE OF THIS LIMITED WARRANTY.
8. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND VINCHIN DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. VINCHIN DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
9. LIMITATIONS ON LIABILITY
IN NO EVENT SHALL VINCHIN OR ITS AGENTS, SUPPLIERS, DISTRIBUTORS OR AUTHORIZED RESELLERS BE LIABLE TO YOU OR ANY PERSON FOR ANY COST OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF PRODUCTION, LOSS OF BUSINESS, LOSS OF BUSINESS INFORMATION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, WASTED OPPORTUNITY OR WASTED MANAGEMENT AND STAFF TIME, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING THAT OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, OR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THE INSTALLATION, USE, INABILITY TO USE OR NON-USE OF THE LICENSED SOFTWARE EVEN IF VINCHIN, ITS AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, THE LIABILITY OF VINCHIN, ITS AGENTS, SUPPLIERS, DISTRIBUTORS AND AUTHORIZED RESELLERS SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF THE FEE PAID FOR THE LICENSED SOFTWARE REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. INDEMNIFICATION
You agree to and do hereby indemnify, defend and hold harmless Vinchin, its agents, suppliers, distributors and authorized resellers from any and all claims, losses, damages and expenses (including reasonable attorneys’ fees, legal expenses and court costs) asserted by any third party due to or arising out of your breach of any provision of this EULA, your use of the Licensed Software and Documentation, your negligent or wrongful acts, and/or your violation of any applicable laws.
11. TERMINATION OF YOUR RIGHTS
Your rights to use the Licensed Software and Documentation shall terminate immediately and without notice to you if you fail to comply with any of the provisions of this EULA. Upon such termination, you shall immediately discontinue the use of and destroy the Licensed Software and Documentation, including without limitation any master copies, archival copies and all copies or portions thereof. Within ten (10) days of such termination you shall certify in writing to Vinchin that all such copies have been destroyed.
12. GOVERNMENT RIGHTS
The Licensed Software and Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, and any use, modification, reproduction, release, performance, delay or disclosure of the Licensed Software and Documentation by any governmental entity shall be solely in accordance with the terms and conditions of this EULA.
13. LICENSE UPGRADES
If the Licensed Software is an upgrade from an earlier release or previously-released version, you are hereby authorized to use the upgrade only in accordance with this EULA. Consequently, any prior agreements with respect to earlier or previous versions of the Licensed Software shall be deemed null and void and superseded in all respects by this EULA.
14. GENERAL
This Agreement sets forth Vinchin's entire obligation and End User’s exclusive rights with respect to the Software and, except to the extent otherwise specifically provided in a purchase order or other written communication or advertising signed or jointly issued by both parties with respect to the Software, supersedes any conflicting terms of any purchase order and any other communication or advertising with respect to the Software. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. This EULA will be governed by the laws of The People’s Republic of China, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods will not apply.
BY CLICKING THE "DOWNLOAD NOW" BUTTON ON OUR WEBSITE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA.
