End User License Agreement

END USER LICENSE AGREEMENT

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE USING THE SOFTWARE PRODUCT. BY USING ANY FORM OF THIS SOFTWARE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT USE THE SOFTWARE PRODUCT. 

This EULA is a legal agreement between you (as defined below) and Actiphy, Inc. ("Actiphy") and contains the terms, conditions, rights, and limitations associated with your use of the Software Product (as defined below). This EULA represents the entire agreement concerning the Software Product between you and Actiphy, and supersedes any prior proposal, representation or any other form of understanding between you and Actiphy.

1. Definitions

1.1 "You" or "you" means End User, namely, a licensee of the Software Product that accepts this EULA and becomes a legitimate user according to the purpose of the proposed utilization of the Software Product, including, but not limited to a natural person, legal entity or organization and any its internal users (your employee or a legal entity or organization controlled by you according to the related laws and articles of association/statute) that uses the Software Product to realize its operational responsibility or business needs. 

1.2 "Software Product" means any licensed software product developed by Actiphy, including, but not limited to its computer programs and all its updates, upgrades, bug fixes or other modifications, any form or type of documentations, its media and other things should be considered as an essential part of the software product. 

1.3 "Use" means to install, activate, access or otherwise use the Software Product.

2. License

2.1 Grant of License: Subject to your full and ongoing compliance with the terms and conditions of this EULA, Actiphy hereby grants to you, and you accept, a limited, non-exclusive, non-transferable (except with prior written consent of Actiphy) license to use the Software Product during the term of license as defined in section 2.3 as long as your use of the Software Product does not exceed the specified quantity in your License Certificate(s). Any use of the Software Product in violation of any of terms and conditions of this EULA is a breach of this EULA and is unlicensed.

2.2 License Metrics: Your use of the Software Product shall be limited by quantity-related or use-related licensing metrics. Your license(s) to install and use the Software Product shall be in accordance with one or more of the following license metrics.
2.2.1 Operating System (OS) - the number of OSes available for the Software Product to operate on. An OS, as suggested here, is limited to Windows or Linux. If one of the Software Products is used on a physical machine or virtual machine, then the number of OSes running on the physical machine or virtual machine will be counted as available for the Software Product. The exception is: a special method of how to calculate the number of OSes as available for the Software Product is granted by Actiphy, in line with some special system environment, usage purposes or other factors.
2.2.2 Host - the number of Hosts available for the Software Product to operate on, where "Host" means the hardware - that is, the physical machine (server) - that provides the computing resources to support virtual machines. If one Software Product is used on the Host, then the number of Hosts will be counted as available for the Software Product. There is no limit to the number and type of virtual machines running on this host. You can use the HyperAgent attached to the Software Product to implement an agentless backup or install the Software Product in an operating system to create an agent-based backup.You can also back up one(1) machine on which HyperAgent is installed. If you choose to install the HyperAgent on more than one(1) machine to spread the load, you need to purchase the appropriate number of HyperAgent backup option licenses for your second machine or above on which HyperAgent(s) is/are installed. 
2.2.3 Additional node - in a multiple node environment, to use the Software Product on additional nodes or to restore virtual systems of non-owner nodes, a node license is required for each additional node. 
2.2.4 Virtual Machine - the number of virtual machines running on a same host or a different host. You can use the HyperAgent attached to the Software Product to implement an agentless backup for the virtual machines running on one or more hosts or install the Software Product in an operating system to create an agent-based backup. You can also back up one(1) machine on which HyperAgent is installed. If you choose to install the HyperAgent on more than one(1) machine to spread the load, you need to purchase the appropriate number of HyperAgent backup option licenses for your second machine or above on which HyperAgent(s) is/are installed.
2.2.5 Cloud based virtual machines - the number of cloud based virtual machines available for the Software Product to operate on, as specified here, means virtual machines running in a cloud environment.
2.2.6 CPU Socket - the number of CPU Sockets assigned to the virtual environment for the Software Product to operate on.
2.2.7 Technician - the number of Technicians that are granted to use the Software Product on unlimited, multiple devices or systems will be counted as available for the Software Product. 

2.3 Term of License:
2.3.1 Evaluation license: In the event you obtained a trial or evaluation version of the Software Product, it will come with an evaluation license that activates the Software Product for a limited time period ("Trial Period"). You may use the Software Product during the Trial Period for internal noncommercial purposes, solely to evaluate the suitability of the Software Product for your needs. Upon the expiration of the Trial Period you must either purchase a license or destroy the Software Product and the evaluation license that you have obtained. If you do not purchase a license prior to the expiration of the Trial Period, this EULA, and all the rights and license(s) in this EULA will terminate at the expiration of the Trial Period.
2.3.2 Perpetual license: If you have a valid proof of entitlement that states that your license is not "Subscription" or "MSP" then, except as stated below, your license is perpetual, subject only to termination for nonpayment of license fees or other breach of this EULA. In the case of a perpetual license for which you paid a license fee, the first year of technical support and maintenance as defined in Article 5 is included, except as may otherwise be provided in the applicable technical support services policies. You may then purchase the technical support and maintenance for subsequent years. If you do not purchase maintenance renewal from the date on which a technical support and maintenance agreement expired, you can still use your current version of the Software product but not enjoy the technical support and maintenance.
2.3.3 Subscription/MSP license: If your license is a Subscription or MSP license, then the term of the subscription or MSP license shall be stated in your License Certificate(s). You may renew the term of your subscription or MSP license until the expiration of the subscription term. The subscription or MSP license, as suggested here, includes the technical support and maintenance as defined in Article 5 for the term of the license. Actiphy grants you the right to use the Software Product in the duration of the license herein. Furthermore, the MSP licensee shall also be bound by "MANAGED SERVICES PROVIDER LICENSE AGREEMENT" signed with Actiphy.
2.3.4 Not-for-Resale ("NFR") license: An NFR license permits you to use Software Product for promotional purposes at reduced or no cost to you. This license may not be copied, distributed, transferred, leased or resold.

2.4 Free Use Built-in Tools or Add-ons
2.4.1 You may use the Create Recovery Disk Wizard built into the Software Product for the purpose of creating recovery disks and it is not limited to operating systems in which the Software Products are installed.
2.4.2 You may use the Physical to Virtual Utility built in the Software Product on a temporary basis to migrate  physical machines into virtual environments, provided that you have purchased a license for a single virtual host running a virtual OS specified as migration destination or migration target.
2.4.3 There are no restrictions on the number or the types of virtual guest operating systems in virtual environment to restore by using the ReZoom function built in the Software Product.
2.4.4 You may use the ReZoom it! without restriction on the number or type of operating systems in which the Software Products are installed.
2.4.5 You are granted to use image consolidation tool and utility tool built into the Software Product to execute on up to three (3) off-site saved image files with the replication function without restriction on the number or type of operating systems in which the Software Products are installed.
2.4.6 The Uses of ImageBoot, HyperBoot, ImageCenter LE and iSCSI Server which are attached to the Software Product are not limited to operating systems in which the Software Products are installed. 

2.5 Transfer of License: You may transfer a license of the Software Product from a former system to a replacement system, provided that you completely terminate the use of the license in the former system.

2.6 General License Restrictions: You agree, that unless you have obtained prior written consent, you will not direct, or through any parent company, subsidiary, affiliate, agent, or third party, do any of the following with respect to the Software Product. You may not lease, license, sublicense, modify, translate, disassemble, decompile, reverse engineer, or create derivative works from the Software Product.

3. Copyright
All titles, including but not limited to copyrights, in and to the Software Product and any copies thereof are owned by Actiphy and protected by Japanese and international copyright laws. You may not copy or disclose any part of the Software Product unless otherwise expressly set forth in this EULA. You agree to supervise the authorized users operation or use of the Software Product pursuant to all the terms and conditions of this EULA.

4. Limitation of Liability and No Warranties
Actiphy expressly disclaims any warranty for the Software Product. The Software Product provided 'As Is' without any express or implied warranty of any kind, regardless of laws and regulations, including but not limited to any warranties of rights, fitness for a particular purpose, or non-infringement. Any information contained in advertising media or packaging of the Software Product is provided for descriptive purpose only and Actiphy makes no warranties, representations, or agreements based on the information therein. Your legal rights are stipulated in this EULA and LIMITATION OF LIABILITY only. In no event does Actiphy warrant or make any representation that the Software Product will meet your requirements, and the operation of the Software Product will be safely uninterrupted or error-free. In consideration of the fact that the system environment where the Software Product is used (including without limitation, hard disk drives, hard disk configuration on individual computers, installed software, and OSes on which software is installed) may change. Actiphy does not warrant or makes any representation regarding the results obtained from the use of the Software Product, accuracy or reliability of any information obtained from the Software Product, or the possibility of correction of defects of the Software Product. In order to ensure that you properly perform data processing and backup procedures, you must conduct exhaustive tests on the Software Product by using non-critical data. The entire risk is assumed by you in the event of installing and running software on individual devices or in the judgment of individual objectives for running the Software Product on individual devices. Under no circumstances including negligence, shall Actiphy be liable to you under this EULA for any special, incidental, consequential, indirect damages (including data loss, business interruption, damages for loss of business profit, asset loss, and the like), arising out of installation or the use of the Software Product even if Actiphy has been advised of the possibility of such damages. In no event shall Actiphy accept claims for such damages from other individual persons or group. This LIMITATION OF LIABILITY shall be applied regardless whether the basic objectives of the limited remedy is achieved or not. In no event shall Actiphy's total liability to you based on this EULA exceed the amount paid by you for license fee of the Software Product for one year until said liability has accrued.

5. Technical Support and Maintenance
Technical support and Maintenance for the Software Product will be available in accordance with the applicable technical support services policies then in effect and shall commence on delivery of the Software Product.

6. Termination
This EULA shall remain effective until terminated or until the expiration of the license or subscription term as defined in this EULA. You may terminate the EULA at any time by ceasing use of or destroying all copies of the Software Product. This EULA will immediately terminate if you breach its terms or if you fail to pay any license fees and you fail to cure that payment breach within thirty (30) days of notice. Upon termination of this EULA, you shall destroy all copies of the Software Product in your possession or control.

7. Governing Law 
This EULA and all disputes arising out of or relating to this EULA or its subject matter will be governed by the laws of Japan.

8. Arbitration
All disputes arising in connection with this EULA will be finally settled under the then existing Rules of the International Chamber of Commerce, by one arbitrator appointed in accordance with those Rules. The place of arbitration will be Tokyo Japan, and the arbitrator will determine the matters in dispute in accordance with the laws of Japan, subject to the application of the body of law controlling conflict of laws. You agree that the award of the arbitrator will be the sole and exclusive remedy between you and Actiphy, and judgment upon the award of the arbitrator may be entered in any court of competent jurisdiction. Any costs, fees or taxes incident to enforcing the award will, to the maximum extent permitted by law, be charged against the Party resisting such enforcement.  

9. Export Restrictions
You agree that the Software Product is subject to the software export regulations of United States and Japan. You agree that it is your responsibility to comply with any international laws and regulations (including, but not limited to the Export Administration Regulations of the United States and restrictions for you, for the use of the Software Product by you, for importing countries, imposed by the United States, Japan and other governmental organizations).

10. Contact Information
Should you have any questions concerning this EULA, please feel free to contact us at:

Website: www.actiphy.com
Office Address: Actiphy, Inc.
8 Kanda-Kon'yacho, Chiyoda-ku, Tokyo 101-0035

Copyright(c)2020 Actiphy, Inc. All Rights Reserved Worldwide.


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