Important: Read carefully before installing and setting this software to use!
End User License Agreement (EULA) for No-Charge-Software
Archiware Pure Software is licensed, not sold. Use of this software is subject to license restrictions. Carefully read this license agreement before using the software. Use of software indicates complete and unconditional acceptande of the Terms and Conditions set forth in this agreement. Any additional or different purchase order terms and conditions shall not apply.
Clicking “accept” or installing and/or using the Software (defined below) establishes a binding agreement between ARCHIWARE GmbH and you as the person or entity licensing the Software (“Customer”); provided that if you are accepting this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term "Customer" refers to such entity. If you do not have such authority or if you do not accept all of the terms of this agreements, immediately return, or if received electronically, certify distruction of software and all accompanying items.
1. Software; Ownershop; Grant of License
1.1 The software, including any upgrades, updates, modifications, revisions, copies, and documentation made available by ARCHIWARE GmbH, is available for download by Customer at no charge. To the extent Customer requests and ARCHIWARE accepts a request to download the Software from ARCHIWARE's download center, each such request will constitute a contract between Customer and ARCHIWARE, which shall be governed solely and exclusively by the terms and conditions of this Agreement. The Software may contain or be accompanied by certain third party software components (“Third-Party Code”) identified at pure.archiware.com/terms (“Third-Party License Information”). The Third Party Notices may include important licensing and liability disclaimers from the Third-Party Code licensors. Customer’s use of Third-Party Code in conjunction with the Software in accordance with this Agreement is permitted under all such Third-Party Notices. All software shall be deemed delivered when made available to Customer for download.
1.2 Software, including all copies and documentation, is copyrighted, trade secret and confidential information of ARCHIWARE or its licensors, who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. You must keep ARCHIWARE confidential information in strict confidence. ARCHIWARE grants to Customer, subject to Customer’s compliance with the terms and conditions of this Agreement, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object or executable code form; and (b) for Customer’s internal business purposes. Customer acknowledges that no-charge versions of the Software may have more limited functionality than commercial versions available for a fee. Customer acknowledges that ACHIWARE may discontinue the no-charge program at any time. Customer may choose to, but is not required to, provide suggestions, data, or other information to ARCHIWARE regarding possible improvements in the operation, functionality or use of Software, whether in the course of receiving services, evaluating Software or otherwise, and any inventions, product improvements, modifications or developments made by ARCHIWARE, at its sole discretion, will be the exclusive property of ARCHIWARE.
2.1 Customer shall not loan, rent, lease, distribute, or otherwise transfer Software without ARCHIWARE’s prior written consent, except as part of a permanent transfer of the Software as permitted by this Agreement. Customer may copy Software only as reasonably necessary to support the authorized use, as long as the number of licenses in use does not exceed the number of authorized use. Each copy must include all notices embedded in Software as received from ARCHIWARE. All copies remain the property of ARCHIWARE or its licensors. Customer shall not: (a) use the Software or allow its use for developing, enhancing or marketing any product that is competitive with the Software; or (b) disclose to any third party the results of or information pertaining to any testing of the Products against a third party’s products for the purpose of competitive comparison. Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive source code from Software.
2.2 Customer may allow third party consultants or contractors (“Authorized Third Parties”) to access and use the Software on Customer’s behalf as long as: (a) the use is solely for Customer’s internal business operations; (b) each Authorized Third Party is under written confidentiality obligations with Customer protecting ARCHIWARE’s intellectual property and Confidential Information with terms no less stringent than this Agreement; (c) Customer ensures that the Authorized Third Party’s use of the Software complies with the terms of this Agreement; and (d) on completion of the Authorized Third Party’s services requiring use of the Software, Customer ensures that the Software are immediately and completely uninstalled from Authorized Third Party’s equipment and/or premises, as applicable.
2.3 Customer may move the Software: (a) from one node (i.e. authorized hardware) to another without charge; and (b) from one site to another site. No transfer under this section shall increase the license scope or number of nodes in use by Customer. Except as provided herein, Customer shall not sublicense, assign or otherwise transfer the Software without ARCHIWARE’s prior written consent and payment of ARCHIWARE’s then-current applicable transfer charges. Any attempted transfer without ARCHIWARE’s prior written consent shall be a material breach of this Agreement and may, at ARCHIWARE’s option, result in the immediate termination of the licenses and this Agreement. On ARCHIWARE's written request, Customer will furnish to ARCHIWARE: (a) a certification signed by an officer indicating whether the Software is being used in accordance with this Agreement; and (b) a copy of any usage reports generated from the Software, if applicable. ARCHIWARE may engage an independent auditor to review Customer’s Software usage and related records during Customer’s normal business hours to confirm compliance with this Agreement.
3. Customer Responsibilities; Disclaimer of Warranties; No Support
3.1 Customer is solely responsible for selecting the Software to achieve its intended results, and for the installation of, use of, and results obtained from the Software. Customer is solely responsible for compliance with all laws, rules and regulations applicable to Customer’s use of the Software. Customer is solely responsible for any taxes, customs duties or similar charges arising out of Customer’s receipt or use of the Software. The Software is made available by ARCHIWARE AS-IS, without warranty of any kind. Archiware and its licensors expressly disclaim any and all warranties of any nature, express or implied, including without limitation any warranties of merchantibility, fitness for purpose or non-infringement. ARCHIWARE support services are not available for no-charge Software. ARCHIWARE may, but is not required to, offer a fee-based support for a limited period of time. ARCHIWARE may, but is not required to, make patches, updates and upgrades to the Software available from time to time. Installation and use of such releases are governed by the terms of this Agreement.
4. Disclaimer of Liability
4.1 The Software is provided to Customer at no-charge. ARCHIWARE and its licensors chall have no liability for any damages whatsoever. Without limiting the foregoing, in no event shall ARCHIWARE or its licensors be liable for direct, punitive, exemplary, indirect, special, incidental, or consequential damages (including lost data, lost profits or savings) whether based on contract, tort or any other legal theory, even if ARCHIWARE or its licensors have been advised of the possibility of such damages. Customer acknowledges that the Software is provided at no-charge, reflecting the allocation of risk set forth in this Agreement and that ARCHIWARE would not enter into this Agreement or offer the Software at no charge without these limitations on its liability. Some jurisdictions do not allow the exclusion or limitation of liability for certain damages for certain types of claims, so the above limitation may not apply to you to the extent prohibited by such local laws.
5. Term and Termination
5.1 This Agreement remains effective until terminated. This Agreement will immediately terminate upon notice if Customer exceeds the scope of license granted or otherwise fails to comply with Sections 1 or 2. For any other material breach under this Agreement, ARCHIWARE may terminate this Agreement upon 30 days written notice if Customer is in material breach and fails to cure such breach within the 30 day notice period. If a Software license was provided for limited term use, such license will automatically terminate at the end of the authorized term. Customer may terminate this Agreement at any time by providing written notice to ARCHIWARE. On termination of this Agreement or any Software license under this Agreement, Customer shall ensure that all use of the affected Software ceases, and shall certify the destruction of all copies of the Software used by Customer to ARCHIWARE’s reasonable satisfaction. The following sections will survive any termination of this Agreement: 1-4 and 6-7.
6.1 The customer acknowledges that the Software is subject to European Union and U. S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
7. General Terms
7.1 This Agreement shall be governed by and construed under the laws of the Federative Republic of Germany, excluding choice of laws rules. Any action or proceeding arising from or relating to this Agreement, must be brought in a court located in Germany, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding; however, this provision shall not restrict ARCHIWARE’s right to bring an action against Customer or its subsidiary in the jurisdiction where Customer’s or its subsidiary’s place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Customer’s legal department. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.