esXpress 4.0-5

EULA - End User License Agreement

Copyright (c) PHD Virtual Technologies, Inc., 2005-2009. All rights reserved. www.esXpress.com, backup.p2v.net, www.phdvirtual.com

PHD believes the information in this publication is accurate as of its publication date. The information is subject to change without notice.

THE INFORMATION IN THIS PUBLICATION IS PROVIDED ìAS IS.î PHD VIRTUAL TECHNOLOGIES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE INFORMATION IN THIS PUBLICATION, AND SPECIFICALLY DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Use, copying, and distribution of any PHD software described in this publication requires an applicable software license.

Linux is a registered trademark of Linus Torvalds.

Windows and MS-DOS are registered trademarks of Microsoft Corporation.

ESX Server is a registered trademark of VMware Corporation.

All other trademarks and copyrights referred to are the property of their respective owners.

EULA

IMPORTANT, READ CAREFULLY. THIS END USER LICENSE AGREEMENT (ìAGREEMENTî) IS A LEGAL AGREEMENT BETWEEN YOU AND PHD VIRTUAL TECHNOLOGIES, INC. (ìPHDî) and applies to the computer software with which this Agreement is provided, and includes any accompanying printed materials and any ìonlineî or electronic documentation (ìSoftwareî). This Agreement will also apply to any Software error corrections, updates and upgrades subsequently furnished by PHD, unless such are accompanied by different license terms and conditions which will govern their use. BY CLICKING ìYESî IN THE ACCEPTANCE BOX, OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THIS SOFTWARE. This Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.

1. SOFTWARE LICENSE.
1.1. License Grant. Subject to your compliance with the terms of this Agreement, the Terms of Use of ESXpress as posted on the PHD website at www.phdvirtual.com (ìTerms of Useî), and your continued subscription to ESXpress, PHD grants you a non-exclusive, non-transferable license, without right of sublicense, to install, use and display the Software in a machine-readable form solely for your internal purposes, and solely in connection with your use of ESXpress. You may reasonably copy the Software to the extent necessary to enable your permitted internal use of the Software, but you may not copy or distribute the Software to any third parties.
1.2. Key Codes, Upgrades and Updates. Prior to your purchase and as part of the registration for the sixty (60) -day evaluation period, as applicable, you will receive an evaluation key code. You will receive a purchase key code when you elect to purchase the Software. The purchase key code will enable you to activate the Software beyond the initial evaluation period. You may not re-license, reproduce or distribute any key code except with the express written permission of PHD. If the Software that you have licensed is an upgrade or an update, then the update replaces all or part of the Software previously licensed. The update or upgrade and the associated license keys does not constitute the granting of a second license to the Software in that you may not use the upgrade or update in addition to the Software that it is replacing. You agree that use of the upgrade or update terminates your license to use the Software or portion thereof replaced.
1.3. Reverse Engineering. Except and to the limited extent as may be otherwise specifically provided by applicable law in the European Union, you may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you may be expressly permitted to decompile under applicable law in the European Union, if it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested PHD to provide the information necessary to achieve such operability and PHD has not made such information available. PHD has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by PHD or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information from users in the European Union with respect to the above should be directed to the PHD Customer Support Department.
1.4. Other Rights and Limitations.
(a) The Software contains valuable trade secrets proprietary to PHD and its suppliers. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Software, or attempt to do so, provided, however, that to the extent any applicable mandatory laws give you the right to perform any of the aforementioned activities without PHDís consent in order to gain certain information about the Software for purposes specified in the respective statutes (e.g., interoperability), you hereby agree that, before exercising any such rights, you shall first request such information from PHD in writing detailing the purpose for which you need the information. Only if and after PHD, at its sole discretion, partly or completely denies your request, may you exercise such statutory rights.
(b) This Software is licensed as a single product. You may not separate its component parts for use on more than one computer or device.
(c) You may not rent, lease or lend the Software.
(d) You may not modify or make derivative works of the Software.
(e) No service bureau work, multiple-user license or time-sharing arrangement is permitted. For purposes of this Agreement ìservice bureau workî shall be deemed to include, without limitation, use of the Software to process or to generate output data for the benefit of, or for purposes of rendering services to any third party over the Internet or other communications network.
1.5. Ownership; Notices. All right, title and interest (including but not limited to copyright, patent, trade secret and all other intellectual property and proprietary rights worldwide) in and to the Software (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Software), the accompanying printed materials and any copies of the Software are owned by PHD and its suppliers. You shall not remove, cover or alter any of PHDís (or its designated suppliersí) copyright, trademark or other proprietary notices placed upon, embedded in or displayed by the Software or on its packaging and related materials.
1.6. U.S. Government Restricted Rights. The software and documentation are ìcommercial itemsî as that term is defined at 48 C.F.R.2.101, consisting of ìcommercial computer softwareî and ìcommercial computer software documentationî as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software and documentation with only those restricted rights as set forth herein.
2. NO WARRANTIES. THE SOFTWARE IS BEING DELIVERED TO YOU ìAS ISî AND PHD MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PHD AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, EITHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE, ITS SATISFACTORY QUALITY AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. PHD IS NOT RESPONSIBLE FOR THE OPERATION OR FAILURE OF OPERATION OF TAPE BACKUP UNITS OR BACKUP MEDIA.
3. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PHD OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF PHD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT. IN NO EVENT SHALL PHDíS TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AMOUNT PAID TO PHD FOR USE OF THE SOFTWARE GIVING RISE TO THE CLAIM, IF ANY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4. TERMINATION. Without prejudice as to any other of its rights, PHD may terminate this Agreement immediately and without notice if you breach any provision of this Agreement or of any other agreement between you and PHD (including, without limitation, the Terms of Use). Upon termination of this Agreement, you must destroy all copies of the Software and all of its component parts.
5. EXPORT RESTRICTIONS. You shall not export, directly or indirectly, the Software (or any component part or output thereof) to any country in violation of any law or regulation, including without limitation any law or regulation of the U.S. Government or any agency. You are solely responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the Software. You agree to defend, indemnify and hold PHD harmless against any liability (including attorneysí fees) arising out of your failure to comply with the terms of this paragraph.
6. AUDIT. During the term of this Agreement and for two (2) years thereafter, (i) PHD shall have the right to inspect your records, computers and devices upon reasonable notice to ensure compliance with the terms and conditions of this Agreement and (ii) you shall maintain complete and accurate records of such compliance with this Agreement. Any such audit shall be at PHDís expense, unless the audit reveals non-compliance by you, in which case, you will (A) bear the costs associated with the audit and (B) promptly pay to PHD any unpaid license fees revealed by the audit.
7. GENERAL. This Agreement shall be governed by the laws of the State of New York and applicable United States federal law without reference to ìconflict of lawsî principles or provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Jurisdiction and venue of any dispute or court action arising from or related to this Agreement or the Software shall lie exclusively in or be transferred to the courts of the County New York, New York, and/or the United States District Court for the Southern District of New York. You hereby consent and agree not to contest, such jurisdiction, venue and governing law. You may not assign this Agreement in whole or in part without PHDís prior written consent, and any assignment or transfer in violation of the foregoing is null and void. PHD reserves all rights not expressly granted by this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, it shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be interpreted so as to best accomplish the objectives of such unenforceable or invalid provisions within the limits of applicable law. The failure of PHD to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement may only be modified in writing by an authorized representative of PHD. This Agreement, together with the Terms of Use, constitute the entire agreement between you and PHD relating to the Software and supersede all prior or contemporaneous understandings and agreements relating to such subject matter whether oral or written. In the event of any conflict between this Agreement and the Terms of Use with respect to the Software, this Agreement shall control.