CLEVX End-User License Agreement (“EULA”)

PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT

Use of the Software Product, as defined herein, is governed by the terms of this End-User License Agreement (the “Agreement” or "EULA"), is effective as of the Effective Date, as defined below, by and between (a) you (either an individual or a single entity, “Licensee”) and (b) ClevX, LLC ("ClevX"). Licensee and ClevX are each a “party” and, collectively, are the “parties” to this Agreement.

BY CLICKING “ACCEPT”, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE PRODUCT, OR TAKING ANY STEP TO INSTALL OR USE THE SOFTWARE PRODUCT, LICENSEE AGREES TO ALL OF THE TERMS OF THIS AGREEMENT. AS LICENSEE, YOU (1) REPRESENT THAT YOU ARE OF THE LEGAL AGE OF MAJORITY IN YOUR STATE, PROVINCE JURISDICTION OF RESIDENCE AND, IF APPLICABLE, YOU ARE DULY AUTHORIZED BY YOUR EMPLOYER TO ENTER INTO THIS CONTRACT, AND (2) YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.  IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT GRANTED A LICENSE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE PRODUCT. 

1. GRANT OF LICENSE.  The Software Product includes two types of computer software (1) software that is owned by ClevX (and may include associated media, and "online" or electronic documentation, collectively the “Software Product”) and (2) other software provided by third parties and supplied by ClevX for use with the Software Product (“Third Party Software”).  Subject to the terms of this Agreement, ClevX hereby grants Licensee and only Licensee a limited, personal, non-sub licensable, non-transferable, non-exclusive license (“License”) to use the Software Product only for Licensee’s own use, and the following non-exclusive rights provided you agree to and comply with all terms and conditions of this EULA:

a.) Use.  As Licensee, you may use the Software Product on your portable storage media (e.g. USB Flash drives, hard drives, memory cards, etc. (or multiple drives, memory cards, etc. if the Software Product is sold to you for use on multiple drives or cards). You may not use the Software Product on any additional USB drives or memory cards and you do not have the right to distribute the Software Product.  You agree to only use the Software Product as expressly permitted herein.

b.) License Restrictions. Except as expressly and unambiguously permitted by this EULA, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software Product; (ii) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or structure, sequence and organization of the Software Product; (iii) rent, lease, or use the Software Product for timesharing, or otherwise use the Software Product on behalf of any third party or for any commercial purpose; (iv) incorporate into or with other software or create a derivative work of any part of the Software Product; or (v) use the Software Product for performing comparisons or other “benchmarking” activities, either alone or in connection with any software (and Licensee will not publish any such performance information or comparisons). Licensee will maintain and not remove, alter, or obscure any proprietary notices on the Software Product.

c.) Reservation of Ownership Rights.  The Software Product does not constitute a sale; the Software Product is licensed, not sold, to you by ClevX.  ClevX and its suppliers and/or antivirus and cloud storage partners own all right, title and interest in and to the Software Product and reserve all rights not expressly granted to you in this EULA.  As Licensee, you agree to refrain from any action that would diminish such rights or would call them into question.

d.) Third Party Software.  Notwithstanding the terms and conditions of this EULA, all or any portion of the Software Product which constitutes Third Party Software is licensed subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, shrink wrap license, or electronic license terms accepted at time of download.  For example, the Software Product contains a virus check feature which you may activate when using the Software Product. In order to do so, you must review and agree to the terms of the virus check End User License that is displayed when you activate that feature. This version of the Software Product uses a virus check feature provided by ESET North America, LLC and EULA is available here: http://www.eset.com/us/software-eula/. By activating or using the Third Party Software you agree to all of the terms of the EULA linked to that software. Specifically, by activating or using the ESET virus check software you agree to all of the terms of the ESET EULA, which shall govern your use of that product.

e.) Support. Technical support for the Software Product will be free for the first thirty (30) days after the activation date. Support will be available via e-mail or website support page during regular business hours PST. Licensee is not entitled to any support after 30 days from the activation date; however, additional Technical Support may be offered by ClevX, at ClevX’s sole discretion, as an additional paid service.

2. UPGRADES.  To use a Software Product identified by ClevX as an upgrade, you must first be licensed for the original Software Product identified by ClevX as eligible for the upgrade.  After upgrading, you will no longer be permitted to use the original Software Product that formed the basis for your upgrade eligibility and the upgraded software shall be deemed the “Software Product” subject to this EULA.

3. ADDITIONAL SOFTWARE.  This EULA applies to upgrades, updates, or supplements to the original Software Product provided by ClevX, unless ClevX provides new terms along with the upgrade, update, or supplement. In case of a conflict between such terms, the new terms will prevail.

4. TRANSFER OF THE LICENSE. This License to the Software Product may only be transferred to another end user (“Transferee”) as part of a transfer of the ownership of the portable storage media (e.g. USB drive(s), memory card(s), etc.) on which the Software Product is installed, and thereby the Transferee will become the Licensee of the Software Product under this Agreement.  Any such transfer must include all component parts, media, printed materials and this EULA.  By use of the Software Product, the Transferee agrees to all the EULA terms and conditions, and becomes the Licensee.  Upon transfer of your portable storage media, the Transferor’s license is automatically transferred to the Transferee and Transferor will cease to be a licensee, and thus, the Transferor will no longer be permitted to use the Software Product after transfer of ownership of the computer(s) on which the Software Product is installed.

5. PROPRIETARY RIGHTS.  All title, ownership rights, and Intellectual property rights in and to the Software Product and user documentation, and any copies or portions thereof, are owned by ClevX or its suppliers or licensors and are protected by U.S. Copyright law and international treaties. Licensee understands that ClevX may modify or discontinue offering the Software Product at any time. You shall not remove any product identification, copyright notices or proprietary restrictions from the Software Product.

6. HIGH RISK USES.  The Software Product is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance (such as, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, or weapons systems) in which the failure of the Software Product could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, the License excludes any use for High Risk Activities.

7. TERM. This EULA shall continue until terminated per this Section. Licensee may terminate this Agreement at any time by ceasing to use and destroying all copies of the Software Product. ClevX may terminate this Agreement immediately if Licensee violates any provision of this Agreement, and any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, USB Flash drives, hard drives, memory cards, networks, and other storage devices all copies of the Software Product. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination.

8. CONSENT TO USE OF DATA.  You agree that ClevX and its affiliates or suppliers may collect and use statistics on your use of the Software Product in performing backup operations and technical information you provide in relation to support services related to the Software Product.  ClevX and its suppliers agree not to use this information in a form that personally identifies you except to the extent necessary to provide such services.

9. DISCLAIMER OF WARRANTIES. 

a.)  You acknowledge that the Software Product is for backup and redundancy only, and should not be used as a sole or primary source of data storage.  YOU AGREE THAT THE USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AS TO SATISFACTORY QUALITY PERFORMANCE, ACCURACY AND EFFORT.  Use of the Software Product may adversely affect the operation of other software and devices.  To the maximum extent permitted under applicable law, the Software Product is offered on an “AS-IS” basis and ClevX does NOT warrant that the functions contained in the Software Product will meet your requirements or that the operation of the Software Product will be uninterrupted or error free or bug free or that such errors will be corrected. Computer software is inherently subject to bugs and potential incompatibility with other computer software and hardware.  You should not use the Software Product for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property.

b.)  EXCEPT AS MAY BE SET OUT IN A SPECIFIC WARRANTY ACCOMPANYING THE SOFTWARE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ClevX AND ITS SUPPLIERS PROVIDE THE SOFTWARE PRODUCT AND THIRD PARTY SOFTWARE “AS IS” AND WITH ALL FAULTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE SOFTWARE PRODUCT AND THIRD PARTY SOFTWARE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ClevX OR A ClevX AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. Some states/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to you in its entirety.  To the extent applicable law requires ClevX to provide warranties, you agree that the scope and duration of such warranty shall be to the minimum extent permitted under such applicable law.

c.) IN NO EVENT DOES ClevX PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SOFTWARE PRODUCT IS DESIGNED TO BE USED, AND ClevX DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF. WARRANTIES, IF ANY, FOR SUCH THIRD PARTY PRODUCTS, INCLUDING ANY USB DRIVE THAT USES OR ON WHICH THE SOFTWARE PRODUCT IS INSTALLED, ARE PROVIDED TO YOU BY THE MANUFACTURER OF THOSE PRODUCTS.  

1. LIMITATION OF LIABILITY.  Notwithstanding any damages that you might incur, the entire liability of ClevX and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by you for the Software Product.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ClevX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE  SOFTWARE PRODUCT,  THIRD PARTY SOFTWARE AND/OR THIRD PARTY HARDWARE USED WITH THE SOFTWARE PRODUCT, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA), EVEN IF ClevX OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

1. INDEMNITY.  Licensee agrees that ClevX shall have no liability whatsoever for any use Licensee makes of the Software Product. Licensee shall indemnify and hold harmless ClevX and its officers, directors, employees, suppliers, and licensors from any claims, settlements, damages, liabilities, costs, fees (including reasonable attorney fees) or other demands made by a third party due to or arising out of or related to Licensee’s use of the Software Product or any content, or Licensee’s failure to comply with any of the terms and conditions of this Agreement.

2. U.S. GOVERNMENT CUSTOMERS. The Software Product is a “Commercial Item” as that term is defined in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable, Commercial Computer Software and Commercial Computer Software Documentation are licensed to the U.S. Government users (i) only as Commercial Items and (ii) only with those rights granted to other users under this EULA. Unpublished rights are reserved under the copyrights of the United States.

3. COMPLIANCE WITH LAWS.  You shall comply with all laws and regulations of the United States and other countries as applicable. Licensee shall not violate U.S. Export Control Laws ("Export Laws") to ensure that the Software Product is not exported or re-exported in violation Export Laws to Cuba, Iran, North Korea, or Syria.  You further agree that you will not use the Software Product for any purpose prohibited under applicable law.

4. APPLICABLE LAW. This EULA is governed by the laws of the State of Washington exclusive of conflict of law provisions and you consent to the jurisdiction of the courts of the State of Washington with respect to any proceedings arising from this EULA.  The parties hereby agree that this Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods.

5. CONFIDENTIALITY. Except as expressly allowed by this Agreement, Licensee will not use or disclose any Software Product code or related technology, algorithm or data except to the extent Licensee can document that it is generally available for use and disclosed to the public without a fee or license.

6. ENTIRE AGREEMENT. This EULA is the entire agreement between Licensee and ClevX relating to the Software Product and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software Product or any other subject matter covered by this EULA.  To the extent the terms of any ClevX policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.  In the event of a conflict between the English and any non-English versions of this EULA, the English version shall govern.  If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provision of the EULA will remain in force and effect. Sections 1b –d and 5 - 16 shall survive termination of this EULA.

© 2005-2014 ClevX, LLC. All rights reserved. Trademarks used herein and in the Software Products are trademarks or registered trademarks of ClevX. All other names and brands are registered trademarks of their respective companies. The only warranties for ClevX Software Products and services are set forth in the express warranty statements accompanying such products and services. Nothing herein should be construed as constituting an additional warranty. ClevX shall not be liable for technical or editorial errors or omissions contained herein.  Portions of the Software Product include technologies provided by the supported cloud storage and antivirus providers.