VEMBU END USER LICENSE AGREEMENT
BY CLICKING ON THE “ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT OR LEAVE THE WEBSITE.
1.1 “Confidential Information” means all information, material or data concerning the business, accounts, finance, technology, personnel, customers, suppliers, trade secrets, know-how or intellectual property rights of Vembu and all information which may reasonably be regarded as confidential information which are supplied or disclosed by Vembu to End-User or obtained by End-User in pursuance of or in connection with this Agreement or which is generated pursuant to or in connection with this Agreement. Without limiting the foregoing, Confidential Information shall include Vembu Software, source code, procedures, business processes, business activities and operations, related documentation, customer lists and the terms of this Agreement. The list of licensees and their contact information shall be deemed to be the Confidential Information of Vembu. Provided that Confidential Information shall not include any information, material or data that:
1.1.1 was, or becomes, generally known to the public without the End-User’s breach of any obligation owed to Vembu;
1.1.2 was, or subsequently is, independently developed by End-User without reference to Confidential Information of Vembu as can be proved by documentary evidence;
1.1.3 was, or subsequently is, received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to Vembu; or
1.1.4 is required by law to be disclosed (in which case the End-User shall give Vembu reasonable prior notice of such compelled disclosure and reasonable assistance, at End-User’s expense, should End-User wish to contest the disclosure or seek a protective order)
1.2 “End-User” means any corporation or other person that has obtained a license from the Owner of Vembu Software and has been authorized to install and/or use Vembu Software for its personal or internal business purposes, pursuant to this Agreement
1.3 “Electronic Delivery” means the delivery using the Internet using servers and public or private access networks
1.4 “Intellectual Property Rights” means any and all rights existing from time to time anywhere in the world under copyright law, patent law, trade secret law, trademark law, unfair competition law or other similar rights
1.5 “Marks” means any trademarks, service marks or trade names associated with the Vembu and/or Vembu Software including the trade marks ‘Vembu’
1.6 “Owner of Vembu Software” means M/s. Vembu Technologies Private Limited (“Vembu”), a company incorporated in India
1.7 “Proprietary Rights” mean all rights, title, interest and intellectual property rights including but not limited to copyright, patent, design rights, trademarks etc., present or future, in perpetuity through-out the world and shall include Confidential Information
1.8 “VembuSoftware” means any edition of the following computer software programs which are part of the Vembu BDR Suite: (a) Vembu VM Backup(VMware Backup & Replication and Hyper-V Backup); (b) Vembu Image Backup(Windows Server & Workstation Image backup); (c) Vembu Network Backup(File & Application backup for Servers & Workstations); (d) Vembu Offsite Replication(Offsite DR & Cloud DR); (e) Vembu Universal Explorer; (f) Vembu Recovery CD; (g) Vembu AWS Backup; (h) Vembu SaaS Backup(Office 365 & G Suite Backup); and (i) Vembu BDR360 together with accompanying items including, but not limited to, the executable programs, drivers, libraries and data files associated with such programs and all related documentation, which are owned by the Owner of Vembu Software, each as upgraded, updated, modified and improved from time to time
1.9 “Source Code” means a series of human readable instructions or statements in high-level or low-level computer language and which is normally transformed by an interpreter or compiler into machine-readable executable code for actual use on a computer
1.10 “Vembu” means Vembu Technologies Private Limited, a company incorporated in India and having it’s registered office at 8th Floor, Chennai One SEZ, Pallavaram-Thoraipakkam 200 Ft Road, Thoraipakkam, Chennai – 600 097, India and its subsidiaries
1.11 “Vembu Portal” means the website www.vembu.com that offers a broad array of resources and services including, but not limited to, a web-based interface for users to create account information
2. SCOPE OF AGREEMENT
2.1 This Agreement sets forth the terms upon which End-User may (i) license the evaluation version of Vembu Software in order to evaluate it by installing and using the evaluation version; and (ii) obtain the right to install, use or copy Vembu Software
2.2 The Vembu Software is not sold to End-User, and instead is only granted a license to use Vembu Software in accordance with the terms of this Agreement. Vembu reserves all rights (including all title and intellectual property rights) not specifically granted to you by this Agreement. Vembu Software is protected by copyright laws and international copyright treatises, as well as other intellectual property laws and treatises
3. GRANT OF RIGHTS AND RESTRICTIONS
3.1 Vembu grants to the End-User a non-exclusive, non-transferable and limited right to install and/or use the evaluation / trial version of the Vembu Software in binary object code form, for purposes of trial, testing, demonstration and or evaluation of the performance of the Vembu Software. This license shall be valid only for a period of thirty (30) days from the installation of the evaluation version of the Vembu Software, (“Evaluation Period”). Should the End-User decide to use the evaluation / trial version beyond the Evaluation Period or if End-User wants to use the Vembu Software to backup its data, the End-User shall purchase licenses for the same in accordance with the terms of this Agreement. Should the End-User decide not to purchase licenses for use of the Software Products and Services (any version) beyond the Evaluation Period, the End-User shall immediately cease using the Vembu Software and/or its functionality and delete all copies of the Vembu Software including the evaluation / trial version installed in its computer(s) forthwith on the expiry of the Evaluation Period. Subsequent downloads of the evaluation / trial version of the Vembu Software by or for the End-User does not extend, renew or otherwise restart the term of the license for the evaluation / trial version granted herein
3.2 Should the End-User decide to install the Vembu Software, subject to the terms of this Agreement, Vembu hereby grants the End-User a limited, non-exclusive, non-transferable license to download, install and use the Vembu Software, as the case may be, for the sole purpose of using the data back-up applications and any other applications expressly provided by Vembu from time to time solely for the End-User’s internal business purposes
3.3 Following restrictions apply:
(a) End-User shall install and use only one copy of the Vembu Software on one server or computer system, as the case may be
(b) End-User shall not use the Vembu Software beyond the period for which it has obtained a license. End-User shall install or use the Vembu Software only on such number of machines for which it has obtained licenses
(c) End-User shall not or permit any other to transmit all or any portion of the Vembu Software through any network or communication line
(d) The rights under this Agreement are personal to the End-User and the functionality of the Vembu Software may be used only by its employees, agents or others specifically authorized by the End-User and the End-User shall not sub-license or transfer in any manner whatsoever any of its rights under this Agreement
(e) End-User shall not modify any portion of the Vembu Software or merge or integrate any portion of the Vembu Software into/with any other program
(f) End-User shall not translate, decompile, disassemble or reverse engineer the Vembu Software or do anything to obtain underlying information that is not visible to the user in connection with normal use of the Vembu Software
(g) End-User shall not display the Vembu Software’s object code on any computer screen or make any hardcopy memory dump of the Vembu Software’s object code
(h) End-User shall not remove, alter or conceal any copyright or other intellectual property notices from any copy of the Vembu Software or any of written materials, if any, accompanying it
(i) End-User acknowledges that it has the license to the Vembu Software as a single product and therefore, shall not separate the Vembu Software into software component parts for use on more than one computer
(k) APPLICABLE ONLY FOR BETA EDITION – Beta Editions of any of the Vembu Software shall be used only for testing purposes and shall not be used in a production environment or to process production data
(l) APPLICABLE ONLY FOR Not for Resale (NFR) EDITION – Any edition of a Vembu Software that is identified as NFR shall not be used in a production environment or to process production data
3.4 End-User acknowledges that it is merely granted a license to install and/or use the Vembu Software in accordance with the terms of this Agreement. Owner of Vembu Software reserves all rights (including all title and Intellectual Property Rights) not specifically granted to the End-User under this Agreement
3.5 Vembu shall make provision for the Electronic Delivery of Vembu Software to the End-User
3.6 End-User shall take reasonable security precautions, protocols, and protective measures to prevent the unauthorized use, copying, distribution, transmission, or dissemination of the Vembu Software
4.1 End-User hereby agrees to pay Vembu applicable license fee, data storage fee and technical support fee, as described in Vembu’s website www.vembu.com, for Vembu Software. Vembu reserves the right to revise such fees from time to time (including to charge for any Vembu Software that was made available for free) and such revised fees will be applicable to any new licenses applied by End-User after the date on which such revised fees are published on Vembu’s website
4.2 All fees described herein are exclusive of applicable taxes and such taxes will be borne by the End-User
4.3 All payments made pursuant to this Agreement shall be in U.S. dollars. Payments shall be made by credit card, check or wire transfer at the time of purchase of licenses for use
5. INTELLECTUAL PROPERTY RIGHTS
5.1 End-User acknowledges and agrees that Vembu is the exclusive owner of the Software Products and Services and retains and owns Intellectual Property Rights in any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the End-User relating to Vembu Software. End-User acquires neither any Intellectual Property Rights nor other rights in Vembu Software, other than the right to install and use the Vembu Software as expressly set forth in this Agreement
5.2 End-User shall not obtain or attempt to obtain any right, title or interest in Vembu Software, any versions or updates of the same, or in any value added services in combination with Vembu Software
6. WARRANTIES AND DISCLAIMER
VEMBU WARRANTS THAT IT HOLDS ALL RIGHT, TITLE AND INTEREST IN AND TO THE VEMBU SOFTWARE OR THAT IT IS OTHERWISE ENTITLED TO PROVIDE INCLUDING THE RIGHT TO LICENSE THE VEMBU SOFTWARE TO END-USER ON THE TERMS CONTAINED HEREIN.
VEMBU WARRANTS THAT THE VEMBU SOFTWARE, WHEN IT IS DELIVERED TO THE END-USER, IS FREE OF VIRUSES, TROJAN HORSES, WORMS, AND OTHER SIMILAR DESTRUCTIVE OR DISABLING CODE.
THE ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY VEMBU. THE VEMBU SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND THE END-USER’S USE OF THE SOFTWARE IS AT END-USER’S SOLE RISK.
VEMBU EXPRESSLY DISCLAIMS AND END-USER HEREBY EXPRESSLY WAIVES ALL OTHER CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT; THAT THE VEMBU SOFTWARE WILL MEET END-USER REQUIREMENTS OR THAT THE OPERATION OF THE VEMBU SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE VEMBU SOFTWARE, IF ANY, WILL BE CORRECTED. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, OR QUIET POSSESSION WITH REGARD TO VEMBU SOFTWARE.
VEMBU’S ABOVE LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF VEMBU FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE VEMBU SOFTWARE. THE VEMBU SOFTWARE’S FAILURE TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE WARRANTIES CONTAINED HEREIN.
IN NO EVENT SHALL VEMBU BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES EVEN IF VEMBU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY IS BY REASON OF BREACH OF WARRANTY OR BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
7. LIMITATION ON LIABILITY
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL VEMBU BE LIABLE TO END-USER FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS OR SAVINGS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER PECUNIARY LOSS) WHETHER IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF YOUR USE OR INABILITY TO USE THE VEMBU SOFTWARE OR THE BREACH OF THIS AGREEMENT, EVEN IF FORESEEABLE OR IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR ANY CLAIM THAT THE VEMBU SOFTWARE INFRINGE UPON A COPYRIGHT OR VIOLATE THE TRADE SECRET RIGHTS OF ANY THIRD PARTY ARISING OR RESULTING FROM ANY BREACH OF THIS AGREEMENT BY THE END-USER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES…
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, VEMBU’S AGGREGATE LIABILITY OR DAMAGES TO END-USER OR TO ANY OTHER PERSON SHALL NOT EXCEED THE AMOUNT PAID BY END-USER (IF ANY) TO VEMBU TO USE THE VEMBU SOFTWARE UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF THE CLAIMS. THEREFORE, IF NO PAYMENTS WERE MADE TO USE THE SOFTWARE, VEMBU SHALL HAVE NO LIABILITY, INCLUDING FOR ANY DIRECT DAMAGES.
End-User hereby agrees to indemnify, hold harmless and defend Vembu from and against any and all claims or lawsuits, including attorney’s fees and costs that arise, result from or are connected with the said use or distribution of the Vembu Software in violation of this Agreement.
9. TERM AND TERMINATION
9.1 The term of the Agreement (“Term”) will commence when End-User agrees to the terms and conditions of this Agreement by clicking the “Accept” button below and completes the registration process for the Vembu Software and Services. This Agreement will remain in effect until terminated by the End-User or Vembu
9.2 In the event End-User has failed to pay any amount for the Vembu Software if and when due, or is in breach or default of any provision of this Agreement, Vembu may forthwith terminate this Agreement without notice. Upon termination of the Agreement, all of End-User’s rights under this Agreement shall immediately terminate and End-User shall be required to delete all copies of the Vembu Software from its computer(s). Vembu reserves the right to disable any Vembu Software installed on End-User’s computer systems on termination of the Agreement. End-User will remain liable for payments and any other obligations incurred till the date of termination
9.3 End-User acknowledges and agrees that Vembu reserves the right to terminate this Agreement without notice, and thereby terminate the rights granted herein to the End-User at any time for any reason
9.4 If End-User commences or participates in any legal proceeding against Vembu, then Vembu may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement
9.5 In the event of multiple license purchases by the End-User for the Vembu Software, if there are any differences in the terms between or among the EULAs issued in connection with the purchases, the terms in the most recent EULA will be deemed adopted by the End-User to govern its use of all Vembu Software supplied to the End-User under all such EULAs
10. COLLECTION AND PROCESSING OF END-USER INFORMATION
Vembu Software collects information about the host server it has been installed in (eg: Host Name, OS details, IP & MAC Address, and UUID), information related to the backup job and backup reports to validate and manage the licenses. Vembu uses this data to simplify the license management, provide swift technical support and also for improving the user experience.
Information related to Vembu BDR backup server/agent: Vembu BDR ID, MAC address, OS name, Vembu BDR Suite edition, Vembu BDR version, Vembu BDR build number and Vembu BDR backup server installed time.
Information related to Backup Job: Backup job name, Backup job type, Backup job created time, Original size of the backup data, Backup data size after compression and deduplication, Incremental job count, Backup job status, Backup job remarks, Error codes, Backup job start time, Total time taken to complete the backup job.
Information related to Host and VM which have been selected for backup: Host/VM name, Host/VM IP address, Host/VM UUID, Physical CPU count of the host, Original size of the virtual machine, and Processed size of the virtual machine for backup.
Information related to the AWS infrastructures such as legal name, address, account numbers, virtual machines, data retaining and database services are collected, which are backed-up using the Vembu AWS Backup (For example, AWS account numbers, EC2 instances, EBS volumes, RDS and DynamoDB databases and Redshift clusters).
Vembu and its affiliates may use the name and logo of End-User to identify the End-User as a customer of Vembu, such as on the website of Vembu or its Affiliates.
11. SUPPORT SERVICES
Notwithstanding anything contained anywhere in this Agreement, Vembu shall not be responsible to the End-User for the maintenance or for the provision of support services for the Vembu Software under this Agreement, or to provide any updates of the Vembu Software other than the support services and software updates provided to End-Users that pay for such services.
12. THIRD PARTY SOFTWARE
Portions of the Vembu Software include software with open source licenses from third parties that govern the use of those portions. Nothing contained herein limits the rights and obligations you may have under such open source licenses. However, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to the Vembu Software as a whole. For details of the open source software included in the Software and the terms of the license for the same, please refer to https://www.vembu.com/license-agreements/open-source-list/
13. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed under by the laws of the Republic of India. End-User agrees that any dispute between the parties arising out of or in connection with this Agreement (including any question regarding its existence, validity or termination) shall be submitted exclusively to the competent courts located at Chennai, India and hereby expressly consents to the jurisdiction and venue of the courts within Chennai, India to the exclusion of any other court that may have jurisdiction in the matter.
This Agreement is binding on End-User as well as its employees, contractors, agents and any person who uses the computer/device on which the Vembu Software is installed. This Agreement is also binding on your successors and assignees. This Agreement is the entire agreement between us and supersedes all previous agreements, arrangements, understandings or representations (including advertisement) relating to the subject matter hereof. If any provision of this Agreement is deemed invalid or unenforceable that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect. Any failure or delay by Vembu to exercise any right or remedy under this Agreement shall not operate as a waiver of that right or remedy.