End User License Agreement for SmartVault Corporation Software

1. License Agreement Confirmation

1.1 THIS END-USER LICENSE AGREEMENT (“Agreement”) IS A CONTRACT between SmartVault Corporation (“SmartVault”) and the individual or company, (“Licensee” ) that is installing SmartVault software or a SmartVault software package (individually and collectively the “Software”) for use in conjunction with a SmartVault online service (the “Service”).

1.2 INSTALLING, DISTRIBUTING, OR USING THE Software, AND/OR INSTALLING A LICENSE KEY IF APPLICABLE, CONFIRMS LICENSEE’S AGREEMENT TO BE BOUND by all the terms and conditions of this Agreement unless Licensee and SmartVault have expressly agreed otherwise in writing.

1.3 Licensee will be bound, as examples but not limited to, by this Agreement’s limitations on:

1.4 This Agreement applies to updates, supplements and add-on components of the Software that SmartVault may provide or make available to Licensee after the date Licensee obtains its initial copy of the Software, unless accompanied by separate terms.

2. License Grant

2.1 Licensee is licensed to use one or more specific items of the Software in executable form only, and only for use with the Service.

2.2 The Software is licensed, not sold. SmartVault or its supplier(s), as applicable, retain title and all ownership rights, of whatever nature, to the Software and to the tangible copy or copies of the Software. All rights not expressly granted herein are reserved by and to SmartVault or its suppliers, as applicable.

2.3 Licensee may use the Software in accordance with this Agreement solely for Licensee’s internal business use, specifically excluding service-bureau use or use as an outsourcer or other third party use, unless expressly specified otherwise in the applicable service plan for the Service.

2.4 Licensee may not use the Software except in accordance with this Agreement, nor permit or assist others to do so.

2.5 Licensee may not decompile, disassemble, or reverse engineer the Software or any part of it, nor permit or assist others to do so. If applicable law permits Licensee to engage in such activities notwithstanding this Agreement, Licensee will provide SmartVault with advance notice and reasonably detailed information concerning Licensee’s intended activities.

3. Limited Warranties; Exclusive Remedies

3.1 OWNERSHIP / NONINFRINGEMENT WARRANTY. SmartVault warrants to Licensee that

  1. SmartVault owns the Software or is otherwise authorized to grant Licensee a license, and
  2. neither the Software nor its use in accordance with the documentation, in and of themselves, will infringe any valid copyright or trade secret right, nor so far as SmartVault knows any valid patent right, of any third party. LICENSEE’S EXCLUSIVE REMEDY for any breach of this infringement warranty shall be to invoke the provisions of the Infringement Indemnity section of this Agreement.

3.2 PERFORMANCE WARRANTY. Software licensed under evaluation licenses and other non-purchased licenses is provided AS-IS, WITH ALL FAULTS and with no warranty. For Software licensed in connection with a paid subscription for the Service, SmartVault warrants to Licensee, for the duration of the then-current subscription period, that the Software, when used in accordance with the user documentation furnished by SmartVault, will perform, in all material respects, substantially in accordance with such documentation. If for any reason SmartVault does not provide a correction or workaround for any breach of this warranty within a reasonable period of time after License’s report of the breach, not to exceed 30 days without Licensee’s approval, then upon Licensee’s written request, SmartVault will refund the paid subscription fee for the then-current subscription period, pro-rated as of the date of the report of the breach, and Licensee’s subscription and license to use the Software will be terminated. THESE ARE LICENSEE’S EXCLUSIVE REMEDIES for any breach of the Performance Warranty.

3.3 VIRUSES, ETC.: SmartVault will make commercially reasonable efforts to ensure that the Software will not contain any virus, Trojan horse, or worm, or other software designed to permit unauthorized access to, or to erase or otherwise harm, Licensee’s software, hardware, or data. Licensee’s EXCLUSIVE REMEDIES for any breach of this warranty will be for SmartVault

  1. to reimburse Licensee for all reasonable resulting “clean-up” damages to the extent that the damages would not have been avoided by prudent precautions such as, for example, regular backups; and
  2. at Licensee’s option, to either
    1. replace the Software with a warranty-compliant version or
    2. cancel the License and refund Licensee’s payment for its then-current subscription to use the Service, pro-rated as of the date License reported the breach.

4. Infringement Indemnity

4.1 If a third party (other than Licensee’s affiliate) claims that the Software or its use infringes the third party’s patent rights, copyright, or trade secret rights, then SmartVault will defend Licensee against the claim, at SmartVault’s expense, and indemnify Licensee against any resulting court costs and damage awards, if any, provided, and on the condition, that Licensee

  1. promptly notifies SmartVault in writing of such claim;
  2. does not make any admissions in respect of the claim;
  3. gives SmartVault sole control of the defense;
  4. does not settle the claim without SmartVault’s consent; and
  5. assists SmartVault in the defense at SmartVault’s request and expense.

4.2 At Licensee’s option, Licensee may engage separate counsel, at Licensee’s own non-reimbursable expense, to monitor the defense; if Licensee advises SmartVault that Licensee has done so, SmartVault will instruct SmartVault’s counsel to provide all reasonable cooperation with Licensee’s counsel for that purpose.

4.3 If

  1. SmartVault so defends Licensee, but a court of competent jurisdiction nevertheless orders Licensee to stop using the Software as a result of the claim, and SmartVault is unable to have the order stayed or overturned on appeal, or
  2. SmartVault settles the claim on terms that require Licensee to cease using the Software, or
  3. SmartVault reasonably determines that Licensee should stop using the Software, then SmartVault will, at SmartVault’s option and expense,
    1. replace or modify the Software to make it non-infringing while still performing the same or substantially the same functions;
    2. procure the right for Licensee to continue using the Software; or
    3. if in SmartVault’s judgment neither (A) nor (B) is commercially feasible, direct Licensee to stop using the Software and refund a prorated amount of the Licensee’s paid subscription fee for its then-current license to use the service. SmartVault will not be responsible for any infringing use that Licensee may make of the Software after SmartVault directs Licensee to stop using the Software.

4.4 SmartVault’s obligations under this Infringement Indemnity Section are LICENSEE’S EXCLUSIVE REMEDIES for any alleged or actual infringement by the Software or Licensee’s use of the Software.

5. Disclaimer of Other Warranties

5.1 SMARTVAULT DOES NOT WARRANT that the Software will be error free, will meet Licensee’s needs, or will operate without interruption.

5.2 SMARTVAULT DOES NOT WARRANT that the Software will perform as documented in cases of hardware malfunction, misuse of the Software, modification of the Software by any party other than SmartVault (the foregoing shall not be construed as granting Licensee the right to make or have made any such modification), use of the Software with other software not described in the documentation, or bugs in other software with which the Software interacts.

5.3 Except to the extent (if any) explicitly stated otherwise in this Agreement, THE Software IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, including but not limited to any application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage.

5.4 On behalf of SmartVault and its suppliers, to the maximum extent permitted by law, SMARTVAULT DISCLAIMS ANY AND ALL OTHER WARRANTIES, DUTIES, CONDITIONS, OR REPRESENTATIONS (express or implied, oral or written), with respect to the Software or any part thereof, including without limitation any implied warranties, duties, conditions, or representations of title, non-infringement, quiet enjoyment, merchantability, fitness or suitability for any purpose (whether or not SmartVault or any of its suppliers know, have reason to know, have been advised, or are otherwise in fact aware of any such purpose), absence of viruses, results, workmanlike effort, or implied term of quality, whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing.

5.5 SMARTVAULT DISCLAIMS, for itself and its suppliers, any warranty, duty, condition, or representation to any person other than Licensee with respect to the Software.

6. Limitation of Remedies

6.1 Each remedy limitation in this Limitation of Remedies section is to be enforced to the maximum extent permitted by law, independently of any other applicable remedy limitation, even if any particular remedy is held to have failed of its essential purpose, and also independently of the warranty-disclaimer provisions of this Agreement. Licensee acknowledges that otherwise SmartVault would not have granted the license on the economic terms associated with such grant.

6.2 To the greatest extent permitted by law, except as set out below, NEITHER SMARTVAULT NOR ITS SUBSIDIARIES, PARENT COMPANY, EMPLOYEES, OFFICERS, DIRECTORS OR AFFILIATES, IF ANY, WILL BE LIABLE TO LICENSEE OR ANY PERSON CLAIMING THROUGH LICENSEE IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES, arising from or relating to any alleged or actual breach of this Agreement or from the use of, the results of the use of, or the inability to use the Software, including, as examples but not limitations, lost profits or other economic loss, loss of privacy, loss of confidential information, arising from the use of, the results of the use of, or the inability to use the Software.

6.3 Other than in respect of SmartVault’s obligation, where applicable, to defend and indemnify Licensee against third-party infringement claims, , to the greatest extent permitted by law, THE MAXIMUM AGGREGATE LIABILITY of SmartVault and its suppliers, subsidiaries, parent company, or affiliates, if any, to Licensee, or to any person claiming rights through Licensee, in respect of any and all claims arising from or related to this Agreement, in contract, tort, or otherwise, will be the aggregate amount of the applicable license fees (plus the initial maintenance fee, if applicable) paid pursuant to this Agreement by Licensee in respect of the Software.

6.4 Some jurisdictions do not permit limitation or exclusion of remedies under some circumstances, so some or all of the foregoing limitations may not apply to Licensee.

7. Export Controls

7.1 Licensee agrees that Licensee will not transfer the Software, or any other software or documentation provided by SmartVault, except in compliance with U.S. export-control regulations or other applicable export laws. (NOTE: transfer or disclosure to a non-U.S. citizen may constitute an ‘export’ even if occurring within the U.S.) For example, Licensee will not export or re-export any of the foregoing:

  • to any person on a government-promulgated export restriction list; or
  • to any U.S.-embargoed countries.

7.2 Licensee represents and warrants that neither it nor any of its officers, directors, or managerial employees:

  • is listed in any export restriction list;
  • is a citizen or resident of any U.S.-embargoed country;
  • has had its export privileges suspended, revoked, or denied by a governmental authority having jurisdiction.

7.3 If SmartVault so requests, Licensee will sign written assurances and other export-related documents as may be required to comply with applicable export laws.

8. U.S. Government

8.1 The Software and its accompanying documentation are “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement. The Manufacturer / Contractor is SmartVault Corporation, 5151 San Felipe Street, Suite 1850, Houston, Texas 77056.

9. Pilot Programs; Beta Testing

9.1 This section applies if the parties agree that Licensee will participate in a pilot program or be a tester of the Software, e.g., for beta-testing.

9.2 Licensee’s license for the pilot program or for the testing will be a limited-time license.

9.3 Licensee will advise SmartVault of any problems that Licensee encounters in using the Software. SmartVault will have the right to adopt, adapt, and/or use any ideas or suggestions that Licensee makes or give SmartVault relating to the Software, permanently and throughout the world, without compensation to Licensee. Licensee will provide SmartVault with reasonable information about the performance of the Software upon request.

9.4 Licensee may not, without SmartVault’s prior written consent, disclose any information about the Software, its design and performance specifications, its code, or the existence of the pilot project or testing and its results to anyone other than Licensee’s employees who are performing the testing.

9.5 The test period shall last from the date SmartVault delivers the Software to Licensee until SmartVault gives Licensee notice that the testing period is ending. Licensee’s right to use the Software shall terminate at the end of the test period.

10. Other Provisions

10.1 The Other Provisions section of the SmartVault Terms of Service are incorporated by reference, mutatis mutandis (“with any necessary changes being made”).