CommVault Systems, Inc.
End User License and Limited Warranty Agreement
CommVault â Simpana â Software Release 10.0.0
(including Microsoft â SQL Server ä 2008 Enterprise Edition, Microsoft â SQL Server ä 2008 R2 Enterprise Edition, Microsoft â SQL Server ä 2012 Enterprise Edition, SQL Server™ 2008 Express Edition, SQL Server™ 2008 R2 Express Edition, SQL Server™2012 Express Edition and Windows Pre-Installation Environment) End User License Agreement
IMPORTANT- READ CAREFULLY: THIS END USER LICENSE AGREEMENT (EULA) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AS AN INDIVIDUAL OR ENTITY) (YOU) AND COMMVAULT SYSTEMS, INC. (COMMVAULT) FOR SERVICES PROVIDED BY COMMVAULT, AS WELL AS THE ABOVE-REFERENCED SOFTWARE PRODUCT(S), WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, AND ONLINE OR ELECTRONIC DOCUMENTATION (SOFTWARE). BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, OR RECEIVING THE SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE. YOU SHALL INFORM ALL USERS OF THE SOFTWARE OF THE TERMS AND CONDITIONS OF THIS EULA.
This EULA, grants You, the user, a non-exclusive license to use the Software under the terms and conditions stated herein. You agree that all updates, enhancements, maintenance releases, patches, bug-fixes or other modifications to the Software provided to You, on a when and if available basis, shall be governed by the terms and conditions, including the limited warranty, exclusive remedies and limitations of liability provisions, contained in this EULA, or the then-current version of this EULA. This EULA may be amended from time to time by CommVault, in its discretion, and will be made available at . Except as otherwise provided herein, the license granted herein shall be perpetual provided You comply with the terms hereof. This EULA shall be in effect until terminated except as expressly otherwise provided herein. You may terminate this EULA at any time by destroying all copies of Software and corresponding documentation. This EULA will terminate immediately without notice from CommVault if You fail to comply with any provision of this EULA. Upon termination, You must destroy all copies of Software in Your possession or control.
You may : (i) use the Software, with the same or lower version number identified herein, in numbers equal to the number of licenses purchased for all items, or in the event You are licensing the Software on a capacity basis, up to the maximum capacity purchased; (ii) make copies of the Software, documentation or other user information accompanying the Software solely for back-up purposes, provided such back-up copies are only utilized as a replacement for the original copy on the same computer that the Software was previously installed; and, (iii) make a copy of or print documentation provided in electronic form for Your internal use only, and You may use CommVault trademarks solely for these purposes, but You must incorporate all patent, copyright, trademark and other notices included on the materials on any copies or partial copies that You make.
You may not : (i) make a copy of any of the Software for any purpose not explicitly permitted herein; (ii) provide commercial hosting services, sell, sublicense, rent, loan or lease the Software to another party, without the prior written consent of CommVault; (iii) except to the extent that such a prohibition is expressly prohibited by law, decompile, disassemble, reverse engineer or modify, in any manner, any of the Software; (iv) transfer or assign Your rights to use the Software; (v) use the Software in violation of applicable local, federal or other laws or regulations; (vi) use the Software for any purpose other than as permitted in this EULA; or, (vii) remove, destroy, erase, alter or otherwise modify CommVault’s trademarks.
Unless this software is provided to You for beta, demonstration, test, or evaluation purposes or is labeled Not for Resale as further described herein, You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software, documentation, or other user information accompanying the Software only to those of your employees having a demonstrable need to have such access for your internal data processing operations. You agree that you shall not permit any access to the Software, documentation, or other user information accompanying the Software to any person engaged in product research, development, support, sales, marketing, or other functions not directly related to your internal data processing operations. You also agree not to use the Software, documentation, or user information accompanying the Software to assist, directly or indirectly, in the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Software, or any conversion utility or aid relating to the Software intended to enable or facilitate a user’s conversion from the use of the Software to an alternative program. Any software CommVault and/or its licensors may provide You as part of maintenance and support services are governed by this EULA, unless separate terms are provided. This EULA does not obligate CommVault and/or its licensors to provide any maintenance and support services or to support any Software provided as part of those services. If support services are provided, they shall be provided subject to the terms of this EULA and in accordance with CommVault’s then current policies, as such may be amended from time to time. In the event You elect to purchase maintenance and support services, You must purchase such maintenance and support services for all of the licensed Software in Your entire environment. Such maintenance and support services shall begin on the date Software is shipped to You. Personal health information, personal financial information, or any other personally identifiable information is not necessary for CommVault’s provision of services. You agree that You will not provide any such information to CommVault.
You agree that CommVault and/or its licensors may, for business purposes, collect, process, and use technical information gathered as part of any product maintenance and support services provided to You related to the Software and any other technical information You provide to CommVault provided that such information does not personally identify You.
All title and intellectual property rights in and to the Software, and any copies You are permitted to make herein, are owned by CommVault and/or its licensors and is protected by United States and other country patent, copyright, trade secret, and other laws and by international treaty provisions. Such licensors, in addition to any other rights or remedies available to them, are third party beneficiaries of this EULA for their respective software and may have the right to enforce such terms against You. This Software is licensed, not sold. The purchase of a license to the Software is final, non-returnable and non-refundable. Acceptance of the Software occurs upon shipment by CommVault or its licensors. No rights are granted to You other than a license to use the Software upon the terms expressly set forth in this EULA. The structure, sequence, organization and source code of the Software are valuable trade secrets of CommVault and/or its licensors. The export of the Software may be restricted by the export control laws of the United States of America and other countries. You agree to comply strictly with all such regulations and acknowledge that You have the responsibility to obtain licenses to export, re-export, or import Software. This EULA shall be governed by the laws of New Jersey, USA, without regard to any provisions concerning the applicability of the laws of other jurisdictions. You agree that exclusive jurisdiction for any claim or dispute arising out of or in connection with this EULA resides in the courts of New Jersey and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. This EULA is the complete and exclusive statement of Your agreement with CommVault with respect to the subject matter hereof and supersedes all prior agreements. This EULA supersedes all terms and conditions contained in any purchase order, order acknowledgment form, invoice or other business form submitted by You. No advertisements, catalogues or other publications or statements, whether written or oral, regarding the performance of the Software licensed under this EULA shall form part of this EULA. If any provision of this EULA is held to be invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this EULA shall remain in full force and effect.
In the event You license the Software on a capacity basis, if you exceed the maximum capacity purchased, the Software may cease to operate normally and/or performance may be impaired; provided however that reducing Your usage to the purchased capacity level or purchasing additional capacity will return the Software to its normal operation. Any excess capacity usage above the purchased maximum shall entitle CommVault to invoice You for licensed capacity and maintenance and support amounts owed, and if You fail to pay for the excess usage, CommVault shall be entitled to any self-help or other remedies available. You shall provide CommVault with any usage reports immediately upon request (and You shall not interfere with any automated reporting features) in order to enable CommVault to verify Your capacity usage. In the event that You license the Software by virtue of Your purchase or use of a hardware appliance, this license is limited to the hardware appliance on which the Software was originally shipped, and the Software may not be used on or transferred to any other hardware or appliance.
To ensure compliance with this EULA, You agree that upon reasonable notice, CommVault or CommVault’s authorized representative shall have the right to inspect and audit Your installation and use of the Software. Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically. Any information obtained during the course of such audit will be used by CommVault solely for the enforcement of CommVault’s rights under this EULA and applicable law. If such audits disclose that you have installed, accessed, used, or otherwise permitted access to the Software in a manner that is not permitted by the terms of this EULA, then CommVault may terminate this EULA immediately and You shall reimburse CommVault for any unpaid license fees and all reasonable expenses related to such audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to CommVault for violation of this EULA or applicable law.
Any reports regarding Your use of the Software and any other usage information, results, comments, or suggestions provided by You to CommVault regarding the Software (collectively, the Feedback) shall be deemed non-confidential to You. By providing Feedback, You grant and assign to CommVault, under Your intellectual property rights and other ownership rights, a worldwide, royalty-free, irrevocable, and non-exclusive license, with the right to sublicense to CommVault licensees and customers, the rights to use and disclose the Feedback in any manner CommVault chooses, and to display, perform, copy, make, have made, use, sell, and otherwise dispose of CommVault’s products embodying the Feedback in any manner and via any media CommVault or its licensees choose, without obligation to You. You also agree that the Software may automatically provide certain reports and survey information regarding its use to CommVault, and which reporting feature You may disable at any time. Any such reports or information shall be kept confidential and used solely by CommVault for internal purposes and/or in a manner that does not identify You. To the extent that You may acquire by operation of law or equity, any right, title, or interest, including any intellectual property rights, in or to the Feedback, or any modifications, or developments related thereto, You hereby assign to CommVault Your entire right, title, and interest, including all intellectual property rights, therein and thereto, and agree to execute any necessary documents as reasonably required and requested by CommVault in connection with the foregoing. The above provisions and rights granted regarding title and intellectual property rights associated with the Software and the Feedback shall survive termination of this EULA.
You agree that any information provided to You by CommVault, including the Software and related Documentation, shall be considered confidential information. You shall not disclose such confidential information without the prior written consent of CommVault.
If the Software is provided to You electronically, You may not request, and CommVault is under no obligation to provide, physical delivery of any Software or media. You agree to be responsible for all taxes and any penalties and/or interest associated with Your purchase or use of the Software. You understand and agree that subsequent Software deliveries may not be eligible for electronic delivery, and in the event physical delivery is made, You shall be solely responsible for any taxes on that, or any prior, purchase. You represent and warrant that neither You, nor any of Your affiliates, have received any physical media from CommVault containing the Software. In the event that any taxing or governmental authority makes a claim against CommVault for taxes, interest, penalties or other payments related to the delivery and/or purchase by You of the Software, You agree to indemnify and hold CommVault harmless from and against all such claims, proceedings, actions and liabilities associated therewith.
All rights not expressly granted hereunder are expressly reserved by CommVault.
Software Labeled Not for Resale or Provided for Beta, Demonstration, Test, or Evaluation Purposes
If the Software is provided to You for beta, demonstration, test or evaluation purposes or is labeled Not for Resale, then, notwithstanding anything to the contrary in the EULA: (i) The licenses granted herein shall be for a term of thirty (30) days (the Evaluation Period) unless otherwise agreed to in writing by CommVault, and CommVault reserves the right to terminate this EULA or any licenses granted hereunder immediately upon written notice at its convenience; (ii) Your use of the Software is limited to use for demonstration, test or evaluation purposes, and You may not resell or otherwise transfer the Software; (iii) You agree to keep confidential and not to disclose or otherwise make publicly available any information related to the Software, including, but not limited to test results, characteristics, and performance of the software; (iv) You agree not to copy the Software and not to provide a copy of the Software to any other party; (v) You agree not to use the Software in a production environment or for production data processing purposes, and that any use of the Software in a production environment or for production data processing purposes is at Your sole risk to backup data and take other appropriate measures to protect Your computer programs and data; and (vi) You agree to immediately, on or before the end of the Evaluation Period, promptly remove, destroy, and erase from computer memory and storage media any installed copy of the Software, and return the Software to CommVault together with all documentation and other materials provided by CommVault. Limited duration licenses, site licenses, beta, evaluation, test or demonstration Software products are delivered AS IS without a warranty of any kind. CommVault shall have no obligation to support, maintain, or provide other assistance regarding any limited duration licenses, site licenses, beta, evaluation, test, or demonstration Software products. If the Software is provided to you for BETA, demonstration, test, or evaluation purposes or is labeled Not for Resale, IN NO EVENT WILL COMMVAULT BE LIABLE FOR ANY DAMAGES FOR ANY CAUSE OR FOR ANY CLAIM BY BORROWER OR FOR ANY THIRD PARTY CLAIM, INCLUDING BUT NOT LIMITED TO ANY DIRECT DAMAGES, ACTUAL DAMAGES, LOST PROFITS, LOST DATA OR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF COMMVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Note on JAVA Support
THIS SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Microsoft Corporation obligated CommVault to make this disclaimer.
With the exception of Software provided to You for beta, demonstration, test or evaluation purposes or that is labeled Not for Resale, CommVault warrants that the Software licensed hereunder shall be new and shall operate substantially in accordance with its user documentation for a period of ninety (90) days from the date of shipment by CommVault or its licensors (hereinafter the "Warranty Period"). If, during the Warranty Period, You believe any Software product to be defective, You must immediately notify CommVault in writing and follow CommVault’s instructions regarding the return of such Software. Nothing in this EULA is intended to exclude, restrict or modify any rights that You may have under any applicable legislation, which may not be excluded, restricted or modified by agreement (hereinafter the non-excludable statutory rights). Except in relation to any non-excludable statutory rights which may not be restricted or modified by agreement, CommVault’s sole liability to You, and Your sole remedy, shall be, at CommVault’s option, (i) repair or replacement of the Software product which does not comply with this Limited Warranty, or (ii) return of the amount paid by You for the Software product which does not comply with the Limited Warranty. In the event CommVault determines that the Software product is in compliance with this Limited Warranty, You shall pay the cost of all charges associated with the inspection and shipment of such Software product by CommVault. The user documentation is the exclusive statement of performance of the Software licensed hereunder.
CommVault warrants that any services provided by CommVault shall be performed by competent personnel of CommVault’s and shall be of professional quality consistent with generally accepted industry standards for the performance of such services.
The following four sentences only apply if You purchased CommVault Software in Australia and You are a ‘consumer’ under the Australian Consumer Law: CommVault’s Software comes with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Software repaired or replaced if the Software fails to be of acceptable quality and the failure does not amount to a major failure.
If You have an enquiry or You wish to claim under this Limited Warranty, please contact CommVault.
COMMVAULT DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. THELIMITED WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES. COMMVAULT AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND COMMVAULT AND ITS LICENSORS EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE PROVISIONS SET FORTH ABOVE STATE COMMVAULT’S AND ITS LICENSORS’ ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY.
Limitation of Liability
NEITHER COMMVAULT, NOR ANY OF ITS LICENSORS, WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PARTY, FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER OR FOR DEATH, PERSONAL INJURY OR DAMAGE TO PHYSICAL PROPERTY OR ENVIRONMENTAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF COMMVAULT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY.
IN THE EVENT COMMVAULT OR ITS LICENSORS ARE SUBJECT TO ANY LIABILITY IN CONNECTION WITH THE SOFTWARE PRODUCTS OR ANY SERVICES FOR ANY REASON WHATSOEVER, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, NEITHER COMMVAULT’S LIABILITY NOR THE LIABILITY OF ITS LICENSORS SHALL EXCEED THE SUM PAID BY YOU TO COMMVAULT FOR THE SOFTWARE PRODUCT WHICH WAS FOUND TO HAVE NOT COMPLIED WITH THE LIMITED WARRANTY. THIS LIMITATION SHALL APPLY EVEN IF COMMVAULT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY.
These terms and conditions, warranties, limitations and remedies contain an allocation of risk between You and CommVault. Accordingly, CommVault’s prices reflect such allocation of risk. Because some jurisdictions restrict the ability to exclude implied warranties, limit or exclude incidental or consequential damages or limit liability, the foregoing limitations and exclusions may not apply to You.
United States Government and DOD
This article applies to all acquisitions of this Software by or for the Federal Government. By accepting delivery of this Software, You hereby agree that this software qualifies as commercial computer software as that term is used in the acquisition regulation(s) applicable to this procurement. The terms and conditions of this EULA shall pertain to the Government’s use and disclosure of this Software, and shall supersede any conflicting contractual terms and conditions. If this EULA fails to meet the Government’s minimum needs or is inconsistent in any respect with Federal procurement law, the Government agrees to return this software, unused, to CommVault.
All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with Restricted Rights as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
The following paragraph is applicable only to CommVault 1-Touch products containing Microsoft Windows Pre-Installation Environment (WinPE) software: (i) The license for the CommVault 1-Touch product is limited to its use as a boot, diagnostic, disaster recovery, setup, restoration, emergency services, installation, test and/or configuration utilities program and not for use as a general purpose operating system or a fully functional version of any operating system product; (ii) the WinPE software is provided as is; (iii) the 1-Touch products, by virtue of the inclusion of WinPE, contain a security feature that will cause the computer system to reboot without prior notification to You after 24 hours of continuous use; (iv) neither Microsoft nor any Microsoft affiliate shall have any liability related to the 1-Touch or the WinPE products; and (v) all customer support issues will be handled solely by CommVault.
The Software may contain certain software licensed by Microsoft to CommVault. You warrant that You are not licensing Microsoft products under this EULA and that any copies of Microsoft software that You receive from CommVault as a result of licensing the Software do not entitle You to maintain on Your computer systems any more copies of Microsoft software than you may have previously licensed from Microsoft or other third parties. Microsoft is an intended third party beneficiary of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same.
The Software may contain certain software licensed by third parties to CommVault. Such licensors are intended third party beneficiaries of this EULA with the right to enforce warranties and any other provision of the EULA and to verify Your compliance with same.
Portions copyright © 1991, 2011 Oracle and/or its affiliates. All rights reserved.
The Software may contain Data Files of IBM Lotus Domino © Copyright IBM Corporation 2007. All Rights Reserved.
DVD, MO and UDO recording software developed under license from PoINT Software & Systems GmbH .
Portions copyright 1992-2010 FairCom Corporation.
CommVault, CommVault and logo, the CV logo, CommVault Systems, Solving Forward, SIM, Singular Information Management, Simpana, the Simpana logo, CommVault Galaxy, Unified Data Management, QiNetix, Quick Recovery, QR, CommNet, GridStor, Vault Tracker, InnerVault, QuickSnap, QSnap, Recovery Director, CommServe, CommCell, ROMS, IntelliSnap and CommValue are trademarks, and may be registered trademarks, of CommVault Systems, Inc. By using any of the CommVault trademarks as authorized herein, in whole or part, You agree to be bound by the then-current CommVault Trademark Guidelines located at www.commvault.com/trademarks www.commvault.com/trademarks . All other third party brands, products, service names, trademarks, or registered service marks are the property of and used to identify the products or services of their respective owners.
This Software is patented: see www.commvault.com/legal-notices www.commvault.com/legal-notices for information about the patents and patents pending covering this Software.
Ó 1997-2014 CommVault Systems, Inc. All rights reserved.