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VEEAM END USER LICENSE AGREEMENT

Last updated: December 5, 2023

IMPORTANT NOTICE: PLEASE READ CAREFULLY. THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (AS AN INDIVIDUAL OR ENTITY, “YOU”) AND VEEAM SOFTWARE GROUP GMBH (“VEEAM”), WHICH SETS FORTH THE RIGHTS AND OBLIGATIONS GOVERNING VEEAM SOFTWARE PRODUCTS (“SOFTWARE”), LIMITED SUPPORT SERVICES, AND ASSOCIATED DOCUMENTATION. BY INSTALLING, USING OR OTHERWISE INTERACTING WITH THE SOFTWARE OR DOCUMENTATION, DELIVERING OR RECEIVING SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT USE OR OTHERWISE INTERACT WITH THE SOFTWARE, DOCUMENTATION OR SERVICES.

1.0 License Grant. This EULA grants You a non-exclusive, non-transferable, non-sublicensable right to install and use the Software, in object code form, and any related documentation (“Documentation”) for Your internal business purposes under the terms and conditions stated herein.

1.1 The Software is to be used in accordance with the specific license You purchased; a description of the license can be found at https://www.veeam.com/licensing-policy.html (“Licensing Policy”). You may only use the number of licenses or capacity that You have purchased, unless the product specifically allows to exceed usage by certain amount. In the event You exceed the purchased capacity, the Software may not process additional workloads, and Veeam is not required to provide maintenance or support for such excess use, unless You purchase additional licenses.

1.2 You are permitted to make copies of the Software and Documentation for Your own use in accordance with this EULA and the Licensing Policy. Any copies or partial copies of the Software and Documentation that You make remain Veeam's intellectual property and must incorporate all relevant patent, copyright and trademark notices.

2.0 Prohibited Use. Without Veeam’s express prior written consent, You may not (directly or indirectly through any employee, contractor, consultant, agent or other representative): (a) resell, transfer, share, or make the Software or Your License Keys available to any third party (including, without limitation, sharing License Keys on any website, forum or social media); (b) process third-party data (as a service provider), provide commercial hosting or support services, sublicense, rent or lease, in whole or in part, the Software to another party, or otherwise use the Software on a service bureau basis, without purchasing a specific Veeam license to do so; (c) decipher, decompile, disassemble, reverse assemble, reverse engineer, modify, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Software, including any License Keys, in whole or in part, for any purpose or in any manner (except to the extent such prohibition is expressly prohibited by law); (d) write or develop any derivative software or documentation or other software programs based upon the Software or Documentation; (e) use the Software or Documentation in violation of any applicable laws or regulations; or (f) disclose, transfer or otherwise make available the results of any performance, capacity or functionality tests or any benchmark testing of the Software to any third party.

3.0 Evaluation Licenses. The Software may be provided to You for beta, demonstration, test or evaluation purposes, with either “Evaluation” or “Not for Resale” license (collectively, “Evaluation Licenses”). For any Evaluation Licenses, the term is limited and will be defined to You by Veeam. Evaluation Licenses are limited specifically to use for demonstration and evaluation purposes only, and You agree not to use the Software for third-party processing purposes. Your use of the Software under an Evaluation License is provided as-is, without any representations or warranties of any kind, and is at Your sole risk. “Not For Resale” licenses cannot be used in production environments or to process production data backups. Veeam has no obligation to provide support, maintain or provide any assistance regarding any Evaluation Licenses. In no event will Veeam be liable for any damages, for any claim or cause for any damages of any kind, including, without limitation, any direct, indirect, special, incidental, exemplary, statutory, punitive or consequential damages (including, without limitation, loss of profits, loss of use or data, damage to systems or equipment or business interruption). You are not entitled to any defense, indemnification or warranty protection for licenses granted pursuant to this section.

4.0 Free Licenses and Community Edition Licenses. Free and Community Edition License products can be used in Your own production environment and only by You in accordance with the terms and conditions of this EULA and the Licensing Policy. You may not use the Free and Community Edition Licenses to provide services to third parties (including support and consulting services for existing Free and Community Edition License installations) or to process third-party data. Your use of Free and Community Edition License products is provided as-is, without any representations or warranties of any kind, and is at Your sole risk. Veeam has no obligation to support, maintain or provide any assistance regarding any of these licenses. In no event will Veeam be liable for any damages, for any claim or cause for any damages of any kind, including, without limitation, any direct, indirect, special, incidental, exemplary, statutory, punitive or consequential damages (including, without limitation, loss of profits, loss of use or data, damage to systems or equipment or business interruption). You are not entitled to any defense, indemnification or warranty protection for licenses granted pursuant to this section.

5.0 Maintenance and Support. Maintenance and support (collectively, “Maintenance”) for the Software is available in accordance with the Licensing Policy and Veeam’s support policy (the “Support Policy”), which can be found at https://www.veeam.com/support.html. Maintenance, if it is included in the Software purchased, will commence upon the date Your order is processed and the license file is generated. You will receive (a) support for Your Software, and (b) any updates, enhancements or improvements that are included or defined in the Support Policy. Software updates cannot be applied to the Software with an expired Maintenance plan.

6.0 Technical Information Collection.

6.1 Veeam cannot access the Software installed in Your chosen environment(s) or any data that You manage using the Software. Veeam cannot access any technical information pertaining to the configuration or performance of the Software unless You voluntarily provide it to Veeam by uploading log files, sharing screenshots, descriptions, reports, survey information, etc. pertaining to the Software use.

6.2 Veeam products that support automatic license updates generate and send license usage statistics to Veeam. THIS FUNCTIONALITY IS TURNED ON BY DEFAULT AND CAN BE DISABLED AT ANY TIME. The license usage data collection is mandatory for all Free and Community Edition licenses and cannot be disabled.

6.3 Certain Veeam products require online licensing services accessibility for license activation and/or usage reporting due to the protected platform’s requirements. THIS DATA COLLECTION IS ALWAYS ON AND CANNOT BE DISABLED.

7.0 Personal Information. In the event You voluntarily provide personal data to Veeam in connection with Maintenance or otherwise, Your personal information will be used and stored in accordance with Veeam’s Privacy Notice, which can be found at https://www.veeam.com/privacy-policy.html. You can always update Your preferences by visiting the Veeam customer portal.

8.0 Intellectual Property Rights. The Software is LICENSED, NOT SOLD. The Software is protected by patent, copyright, trademark, trade secret and other laws, including, without limitation, international treaties. A list of relevant patents and trademarks can be found at https://www.veeam.com/veeam-patents-and-registered-trademarks.html. All rights, title and interest in and to the Software, Documentation, and any other Veeam materials or information provided or made available in connection with this EULA, as well as all suggestions, ideas and feedback You propose regarding the foregoing, are owned by Veeam (or any third-party licensor), and You hereby assign any right, title and interest in and to any such suggestions, ideas or feedback to Veeam. Third-party licensors, in addition to any other rights or remedies available to them, are third-party beneficiaries of this EULA with regard to their respective component(s).

9.0 Open Source Software. Veeam may include various open source software components in or with the Software (collectively, “OSS”), each of which is owned by a third-party and is subject to its own applicable license terms and conditions. A current list of OSS components used by Veeam can be found at https://www.veeam.com/eula-oss.html. All OSS is provided on an “as-is” basis, and Veeam makes no express or implied warranties of any kind with respect thereto and assumes no liability for any damages regarding the use or operation of any such OSS.

10.0 Export Compliance. The Software and documentation may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You shall comply with all such regulations and agree to be solely responsible for determining whether it may export, re-export, or import the Software and Documentation in a legally compliant manner.

11.0 Audit. During the term of this EULA and for a period of one year thereafter, Veeam may, during normal business hours and upon reasonable prior notice to You, inspect Your files, computer processors, equipment and facilities to verify Your compliance with this EULA and Your use of the Software in compliance with the Licensing Policy and with the quantities purchased via authorized Veeam resellers or online marketplaces.

12.0 AI-enabled Assistant. Some Software may contain an artificial intelligence-enabled assistant trained to provide You with information about how the Software functions and to answer questions You might have about this Software ("Assistant"). This feature relies on technology that is still developing, and it may produce unexpected or inaccurate output. By using the Assistant, You acknowledge that You are aware of and accept these risks. You further agree that Veeam is not responsible for the Assistant’s output, or any information that You input into the Assistant. You may not use the Assistant for any purpose other than to seek information about the Software’s functionality. You agree that under no circumstances will You or any user in Your organization input to the Assistant information that is considered "personal information" or "personal data" (as those or similar terms are defined under any laws applicable to You) or information that Your organization considers confidential or non-public. The Assistant is based on Azure OpenAI Service from Microsoft Corporation. All input You share with this Assistant will be processed in accordance with Microsoft’s Azure OpenAI Terms. Before using the Assistant, please review that documentation, and do not use the Assistant if You do not agree to those terms. Veeam may store and review any input You share with the Assistant and the Assistant’s output in order to improve the Assistant’s functionality or as otherwise necessary for Veeam to provide its services. Veeam will delete all stored input and output after 30 days from the store date. Veeam does not review all of the Assistant’s output; if the Assistant is unable to answer Your question or if You have any concerns regarding its output, You may contact Veeam’s customer support personnel.

13.0 Indemnification. Veeam will defend or, at its option, settle any action, suit or proceeding against You that is based upon a claim that Your use of the Software infringes any patent, copyright or other intellectual property right of a third party, and will indemnify You against any amounts awarded against You as a result of the claim, suit or proceeding; provided that (a) Veeam is promptly notified of the assertion of the claim, suit or proceeding, (b) Veeam has sole control of its defense and/or settlement, and (c) You provide reasonable assistance and cooperate in Veeam’s defense and/or settlement, at Veeam’s expense. Veeam’s defense and indemnity obligations do not apply, and You shall be responsible for the defense and/or settlement of any claims where (1) Your use of the Software or Documentation is beyond the scope of license granted in this EULA, (2) You modified or created derivative works from the Software or Documentation, (3) You used an outdated and infringing version of the Software or Documentation after release of a non-infringing version by Veeam, or (4) You used or combined the Software with any technology, software or hardware not supplied by Veeam, where the alleged infringement would not have occurred absent such use or combination, (5) You use the Evaluation Licenses or Free and Community Edition Licenses. In the event any such infringement action, suit or proceeding is brought or threatened, Veeam will, at its sole option and expense: (i) procure for You the right to continue use of the Software or the allegedly infringing part thereof; or (ii) modify or amend or replace the same with other software or material having substantially similar functionality and performance. The aforementioned options are Your sole remedy under this provision.

14.0 Limited Warranty and Limitations of Liability.

14.1 The purchase of the Software license (perpetual or subscription), is non-returnable and non-refundable. Veeam warrants that the Software, in its unmodified form as initially delivered or made available to You, will perform substantially in accordance with the Documentation for such Software for a warranty period of ninety (90) days from the date the Software is delivered to You (the “Warranty Period”). In the event the Software fails in a material respect to operate in accordance with the Documentation during the Warranty Period and Veeam is unable to correct the defect, Veeam’s sole and exclusive liability and Your sole and exclusive remedy shall be a refund of the license fees, if any, paid by You for the Software. All claims must be raised within the Warranty Period. The foregoing limited warranty will not apply to licenses under sections 3.0 and 4.0, or if failure of the Software is the result of damage or misuse You caused. In the event a reported problem with the Software is Your fault, You agree to reimburse Veeam for its correction efforts in accordance with its then standard rates.

14.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13.1, THE SOFTWARE AND MAINTENANCE ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY THAT THE SOFTWARE IS FREE OF DEFECTS, WILL BE UNINTERRUPTED, IS MERCHANTABLE, OR FIT FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VEEAM OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY VEEAM DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THIS LIMITED WARRANTY.

14.3 IN NO EVENT WILL VEEAM OR ANY OF ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE OR ANY OTHER MATERIALS OR MAINTENANCE PROVIDED BY VEEAM UNDER THIS EULA, WHETHER ALLEGED AS A BREACH OF CONTRACT CLAIM OR AS ANOTHER TYPE OF CLAIM, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR UNJUST ENRICHMENT, UNFAIR COMPETITION OR BUSINESS PRACTICES, OR OTHER TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF VEEAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VEEAM’S MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS EULA AND VEEAM’S RELATIONSHIP WITH YOU SHALL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY YOU TO VEEAM FOR THE SOFTWARE DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THE APPLICABLE CAUSE OF ACTION AROSE.

14.4 NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS EULA OR TRANSACTIONS CONTEMPLATED BY THIS EULA MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS EULA, A CAUSE OF ACTION SHALL BE DEEMED TO HAVE ACCRUED WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE BREACH OR CLAIMED BREACH.

15.0 General. This EULA, together with the policies and information referenced herein, sets forth Veeam’s entire obligation and Your exclusive rights as to the Software and Maintenance, and supersedes any conflicting terms of any purchase order and any other communication regarding the same. No failure of either party to exercise or enforce any of its rights hereunder will act as a waiver. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected. This EULA is governed by the laws of Switzerland, without regard to its conflicts of law principles and excluding the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You agree that Canton of Zug, Switzerland will be the exclusive jurisdiction for any claim or dispute arising out of or in connection with this EULA. You may not assign or transfer this EULA, in whole or in part, including by way of merger, consolidation, a sale of assets, or a similar transaction without notifying Veeam and providing evidence that the rights and obligations of this EULA have been legally transferred and assumed by the assignee. Veeam may assign and delegate this EULA without restriction. Subject to the foregoing, this EULA is binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. 

VEEAM DATA CLOUD SERVICE AGREEMENT

Last updated: February 29, 2024
INTRODUCTION

IMPORTANT, PLEASE READ CAREFULLY: this Veeam Data Cloud Service Agreement (“Agreement”) is a legal agreement between You (defined below) and Veeam VaaS Corporation, a Delaware, USA corporation (“Veeam” or “we,” “our” or “us”), with respect to the use of and access to the Services (defined below) made available to You by Veeam pursuant to this Agreement.

By clicking a box indicating your acceptance, submitting a purchase order in response to a quote from Veeam, or a third party partner reseller authorized by Veeam (“Reseller”) relating to a Service, accessing or otherwise using a Service, or otherwise affirmatively indicating your acceptance of this Agreement, You: (a) agree to be bound by this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”) and (b) represent that You have the authority to bind Customer to this Agreement.

If You do not have such authority or if You do not agree with the terms of this Agreement, do not use the Services.

DEFINITIONS

1. “Authorized User” means any of Customer’s employees, consultants, contractors, agents, customers, suppliers and any other third party that you authorize or permit to access or use the Services.

2. “You” or “you” means the person accepting this Agreement on behalf of Customer, and where You are agreeing to specific rights, obligations and restrictions, you are agreeing to such rights, obligations and restrictions on behalf of Customer, all of which shall be binding upon Customer.

3. “Documentation” means the user manuals, help files, technical manuals, and any other materials provided by or on behalf of Veeam that accompany the applicable Service, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the applicable Service.

4. “Microsoft 365 and/or Microsoft Azure Account” means a Microsoft Azure Tenancy controlled by you that is to be backed up via a Service. 

5. An “Order” means an order form, online order, or other ordering document entered into by you with Veeam or a Reseller that references this Agreement or pursuant to which you are otherwise informed that this Agreement applies to your access to and use of the Services.

6. “Scope Limitations” means the limitations on Customer’s and Authorized Users’ use of the Services, as may be specified in the applicable Order, or as a result of changes you or Customer makes to the scope of your Subscription (as defined below) (e.g., the number of Azure virtual machines and data storage limitations).

7. “Services” means the services made available to Customer (Backup as a Service) by Veeam as set forth in an Order.

SUBSCRIPTIONS; ACCESS TO AND USE OF SERVICES

8. Veeam provides access to the Services on a subscription basis, which may include, renewal payments, automatic renewal payments, and payments for additional instances (each a “Subscription”). 

9. Subject to your compliance with this Agreement, Veeam hereby grants you, during the Subscription Term (defined below), the right to access and use the Services in accordance with the Documentation for Customer’s internal business purposes under the terms and conditions of this Agreement solely in connection with Covered Accounts (as defined in Section 11) and subject to the Scope Limitations. You may only use the Services in connection with the number of Covered Accounts included in your Subscription.

10. Except as otherwise expressly permitted in this Agreement, you are not allowed to:

  • reproduce, modify, adapt or create derivative works of the Services or Documentation, in each case in whole or in part;  

  • use the Services or Documentation in violation of any applicable laws or regulations or as part of any malicious, deceptive, or unlawful programs;

  • rent, lease, distribute, sell, sublicense, transfer or provide access to the Services or Documentation, in each case in whole or in part, to a third party;

  • use the Services or Documentation as or as part of a service bureau or otherwise use the Services or Documentation for the benefit of any third party;

  • incorporate any Services or Documentation, in each case in whole or in part, into a product or service you provide to a third party; 

  • disabling or tampering with any license manager or similar software control that is intended to regulate the use of, and is embedded or otherwise incorporated into, the Services or otherwise interfere with or circumvent mechanisms in the Services intended to limit or monitor your use of the Services;

  • reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);

  • remove, modify or obscure any proprietary or other notices contained in any Service or Documentation;

  • use the Services or Documentation for competitive analysis or to build competitive Services; 

  • run benchmark or other performance tests on the Services or otherwise disclose to any third party any information regarding the performance of the Services; or

  • enable, encourage or assist any third party to do any of the aforementioned activities.

INVOICING & PAYMENT TERMS

11. You will be charged fees (the “Subscription Fee”) during the Initial Term (defined below) and each Renewal Term (defined below) based on the number of M365 and/or Microsoft Azure IaaS and/or PaaS instances for which you have purchased access rights during Subscription Term or, if higher, the number of M365 and/or Azure IaaS and/or PaaS instances that you use the Service in connection with (each, a “Covered Account”) and other Scope Limitations and associated fees that are applicable to your use of the Services. All fees are non-refundable and are payable in the currency specified on the Order.

12. The Services are operated under two licensing models: fixed and variable. Under a fixed license model, only you can increase or decrease the number of licenses you consume. Under a variable licensing model, we will automatically backup additional users IaaS and/or PaaS instances added to your M365 and/or Azure Accounts based on the M365 Objects or Active Directory groups, and/or Microsoft Azure IaaS and/or PaaS instances you have chosen to backup. Under either licensing model, Veeam will invoice you in arrears on a pro rata basis for any additional protected Users, IaaS or PaaS instances and applicable storage and networking charges you have consumed in the month. On or around the first day of each month, Veeam will issue you an invoice for the pro rata charges incurred in the prior month and also bill you in advance based on the new total licenses consumed. If you are on an annual contract, you will be invoiced in advance for the additional licenses and/or storage consumed up to the last day of the current contract period.

13. Veeam reserves the right to determine pricing for the Services. We encourage you to check our website periodically for current pricing information. Veeam may change the fees for any Service, or any feature included therein, including additional fees or charges, if Veeam gives you advance notice of changes before they apply. Veeam, at its sole discretion, may make promotional offers with different features and different pricing available to its customers, but if these promotional offers are not made directly to you, they will not apply to you or this Agreement.

14. You authorize Veeam to charge all sums for the Orders that you make and any level of Subscription you select as described in this Agreement or published by Veeam, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Veeam may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

15. If you activate a Subscription by submitting an Order or otherwise indicate your agreement to activate or extend the term of a Subscription, you authorize Veeam to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums.

16. The “Subscription Billing Date” is the date when you purchase your first Subscription to the applicable Service. You will be charged on the Subscription Billing Date all applicable fees and taxes for the Initial Term or upcoming Renewal Term (as applicable). The Subscription will continue unless and until you cancel your Subscription, or we terminate it. You must cancel your Subscription before it renews in order to avoid us billing you for the next periodic Subscription Fee. We will bill the periodic Subscription Fee to the payment method you provide to us on the Order or during registration (or to a different payment method if you change your payment information). 

SERVICES ADMINISTRATION

17. Through the Services, you may be able to specify certain Authorized Users as “Administrators,” who will have important rights and controls over your use of Services and Authorized User accounts (“Accounts”). These rights may include the ability to (a) place Orders for additional M365 Accounts, IaaS and/or PaaS instances, data packs (where applicable), or other expansions of limits relating to applicable Scope Limitations, (b) renew or extend the Subscription Term, (c) create, de-provision, monitor or modify Accounts, (d) set Authorized User usage permissions; and/or (d) manage access to data by Authorized Users or others. Fees may increase automatically based on the number of then-current Covered Accounts or exceeding applicable Scope Limitations. On request, if applicable to your Subscription, an Administrator may request in writing to Veeam that the usage of the Service will be restricted to a specified number of M365 Accounts, IaaS and/or PaaS instances. 

18. Administrators may also take over management of Accounts previously registered using an email address belonging to your M365 Account and/or Azure Account. You are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Services for you.

19. If you place an Order through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Reseller. As between you and Veeam, you are solely responsible for any access, use, or other actions by Reseller to your Authorized User accounts or otherwise with respect to the Services.

20. Prior to providing access to the Services, you will provide all required disclosures to and will obtain and maintain all required consents from Authorized Users to allow: (a) Administrators to have the access described in this Agreement and our Privacy Notice located at https://www.veeam.com/privacy-notice.html (the “Privacy Notice”) and (b) Veeam’s provision of the Services to Administrators and Authorized Users. You will provide evidence of such consents upon our reasonable request.

21. Our Services have various user onboarding flows. Some Services require Authorized Users to be designated by Administrators; some allow Authorized Users to sign up for individual Accounts which can become associated with teams or organizations at a later time; and some may allow Authorized Users to invite other Authorized Users. Pricing and functionality may vary according to the type of Authorized User.

22. You are responsible for understanding the settings and controls for each Service you use and for controlling whom you allow to become an Authorized User. If payment is required for Authorized Users to use or access a Service, then we are only required to provide the Services to those Authorized Users for whom you have paid the applicable fees, and only such Authorized Users are permitted to access and use the Services.

23. Some Services may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. You are responsible for compliance with this Agreement by all Authorized Users, including for any payment obligations.

24. You are responsible for the activities of all your Authorized Users, including Orders they may place and how Authorized Users access, use, share, disclose, transfer, or otherwise process User Data (defined below).

25. You must require that all Authorized Users keep their user IDs and passwords for the Services strictly confidential and do not share such information with any unauthorized person. You are responsible for any and all actions taken using Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware. You must take all steps reasonably necessary to terminate the unauthorized use. You will, and will cause your Administrators and Authorized Users, to cooperate and assist with any actions taken by Veeam to prevent or terminate unauthorized use of the Services or Documentation.

26. During the Subscription Term, we will provide support for the Services in accordance with the applicable support terms available at https://www.veeam.com/support.html

27. If you require support or experience a technical issue with the Service, you may contact our support team by logging a ticket at https://www.veeam.com/support.html.

PURCHASE THROUGH A RESELLER

28. If you purchase a Subscription through a Reseller:

  • Instead of paying us, you will pay the applicable amounts due for the Services and associated Subscriptions you have ordered to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Services if we do not receive the corresponding payment from the Reseller or proof that you made the payment.

  • Your order details will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of such Orders.

  • Resellers are not authorized to modify the terms of this Agreement and Veeam is not bound by any obligations to you other than as set forth in this Agreement.

DATA USE AND PRIVACY

29. Certain jurisdictions require specific contractual terms regarding the collection, maintenance, storage, or processing of personal data or personal information — as those terms as defined in the relevant laws.  To the extent you operate in such a jurisdiction, we hereby incorporate by reference our Data Processing Addendum, located at https://www.veeam.com/company/policy/data-processing-addendum.html (the “Addendum”).  The Addendum sets forth the terms of our relationship with respect to the processing of personal information or personal data on your behalf in those jurisdictions.  To the extent there is any conflict between this Agreement and the Addendum with respect to the subject matter of the Addendum, the Addendum shall take precedence.

30. We implement and maintain technical and administrative security measures designed to protect User Data (defined below) from unauthorized access, destruction, use, modification, or disclosure.

31. We collect certain data and information about users, including Authorized Users, in connection with the provision of the Services. To the extent such data qualifies as personal information, we collect, use, share, disclose, transfer, and process all such data and information in accordance with the Privacy Policy.

32. As between you and Veeam, you retain all right, title and interest in and to your data in the form submitted by or on behalf of Authorized Users to or via the Services (the “User Data”). Subject to this Agreement, you grant us and our affiliates a worldwide, limited term license to access, use, process, copy, distribute, perform, export, transfer, and display User Data solely for the purpose of providing the Services to you.

33. You and your use of Services must comply at all times with this Agreement and all applicable laws and regulations.

34. You represent and warrant that:

  • You, on behalf of the Customer and Authorized Users, have obtained all necessary rights, releases and permissions to submit all User Data to the Services and to grant the rights granted to us in this Agreement; and
  • User Data and its submission and use as you authorize in this Agreement will not violate: (a) any applicable laws or regulations; (b) any intellectual property, contract, privacy, publicity or other rights, or (c) any of your or any applicable third-party policies or terms governing User Data.

35. We are not responsible for any access to or use of User Data by third party providers, including data storage service providers, or their products or services, or for the security or privacy practices of any third-party provider or its products or services.

36. Where we think there has been unauthorized access to a M365 or Azure Account, we will use commercially reasonable efforts to notify you about what has happened. Depending on the nature of the unauthorized access, and the location of your affected data, you may be required to assess whether the unauthorized access must be reported to individuals and/or relevant authorities. You will be best placed to make any such decision, because you will have access to and the most knowledge about the personal data stored in your User Data. Note that if you or your Authorized Users cause such an incident, such as by improperly securing your account credentials, we may be unable to identify the unauthorized access, notify you about such access, or otherwise assist in determining the scope or nature of such access.

37. The Services automatically collect and transmit technical data about the performance or use of the Services (“Service Usage Data”). Service Usage Data is separate and distinct from the contents of any User Data. While using Services Veeam may collect, generate, and derive Service Usage Data for our business purposes, including to: (a) track usage for billing purposes; (b) provide support for the Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Services; and (e) improve the Services and develop derivative and new products and services. You will not interfere with the collection of Service Usage Data. To the extent any Service Usage Data qualifies as personal data or personal information under applicable law, it is subject to Veeam’s Privacy Policy.  As between you and Veeam, and to the fullest extent permitted under applicable law, Veeam owns all rights, title, and interest, including all intellectual property rights in and to all Service Usage Data, the know-how and analytical results generated in the processing of Service Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Services based on or derived from the Service Usage Data.

COMMUNICATIONS
38. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
CONFIDENTIAL INFORMATION
39. While using a Service or otherwise pursuant to this Agreement, you may share confidential information with us, and you may become aware of confidential information about us. You and we each agree to take reasonable steps to protect the other party’s confidential information from being accessed by unauthorized individuals. You or we may share each other’s confidential information with legal or regulatory authorities if required to do so, but in the event this happens, and if permitted, we must notify one another as promptly as practicable.
SECURITY

40. We may introduce features designed to make M365 Accounts and/or Azure Accounts more secure. Depending on your location, we may require you to adopt some of these features. Where we make the use of features optional, you’re responsible (meaning we’re not liable) for any consequences of not using those features. We strongly encourage you to use all optional features.

41. You have an important part to play by keeping your login details secure, not letting any other person use them, and by making sure you have strong security on your own systems. If you realize there’s been any unauthorized use of your password or any breach of security to a M365 Account and/or Azure Account or email address linked to a M365 Account and/or Azure Account, you need to let us know immediately by lodging a new support ticket on our customer support portal at https://www.veeam.com/support.html. You also agree not to use free-form fields in any of Veeam’s systems or services to store personal data (unless it’s a field explicitly asking for personal data – like a first name or a last name), credit card details, tax identifiers or bank account details.

THIRD-PARTY PRODUCTS

42. Some of the Services use or require the use of services provided by third parties, including data storage service providers (e.g., Azure Warm Storage), and such third party services have additional terms that apply to you.

43. These services are subject to terms and conditions and privacy notices set by their providers. These include how the provider will use User Data or other data or information that you make available to them. By using the Services, you agree to be bound by the terms and conditions of these services.

SERVICE LEVELS

44. Backup Schedule: Veeam is currently offering a daily backup schedule through the Services, however more frequent backups may be requested.

45. Recovery Point Objective (RPO): The initial backup RPO is 48 hours. Subsequent delta backups have an RPO of 24 hours, assuming one (1) backup per day, this can be reduced to four (4) hours in some cases upon request.

MAINTENANCE AND DOWNTIME

46. We strive to maintain the availability of the Services 24 hours a day, 7 days a week. On occasion, we need to perform maintenance on the Services and the infrastructure through which we make them available, and this may require a period of downtime. We try to minimize any such downtime. Where planned maintenance is being undertaken, we’ll use commercially reasonable efforts to notify you in advance and select a day and time that will minimize the impact on our global subscribers.

47. You acknowledge and agree that you are solely responsible for obtaining and maintaining sufficient access to the internet in connection with your use of the Services. You further acknowledge and agree that internet, network, communications or other outages may impact your ability to access and use the Services and that we have no control over or responsibility for any of the foregoing.

48. Regardless of the cause of any downtime, access issues or any data loss with respect to your use of the Services, you acknowledge and agree that your only recourse in connection with any or all of the foregoing is to discontinue using the Services.

49. If you have a problem, please review our support articles that should help you with most situations. If you’ve tried our FAQ’s and still need help, you can contact our support by logging a support request at https://www.veeam.com/support.html.

50. We frequently release new updates, modifications and enhancements to the Services, and in some cases discontinue features. Where this occurs, we will endeavor to notify you where practical (for example, by email, on our blog, or within the Services when you log in).

51. You acknowledge and agree that Veeam may, in its sole discretion, with thirty (30) days prior notice, modify the features and functionality of the Services, including:

  • establish new limits on the Services (in whole or in part), including limiting the volume of data which may be used, stored or transmitted in connection with the Services;

  • remove or restrict the use of application programming interfaces or make alterations to data retention periods;

  • modify the Service, its infrastructure, system configurations or routing configuration; or

  • modify or replace any hardware or software within its infrastructure or in equipment used to deliver the Service.

TERM AND TERMINATION

52. Subject to your compliance with this Agreement, unless earlier terminated, the initial length of your Subscription for a particular Service will be as agreed to in the applicable Order (the “Initial Term”). Your Subscription will automatically extend for successive terms of the same length as the Initial Term (or such other length of renewal period as stated on the Order) (each, a “Renewal Term” and the Initial Term, together with all Renewal Terms, if any, the “Subscription Term”).  For example, if the length of the Initial Term is 30 days, the length of each Renewal Term will be 30 days.  If the length of the Initial Term is 12 months, the length of each Renewal Term will be 12 months.

53. You may choose to terminate your Subscription at the end of the Initial Term or Renewal Term (as applicable) by providing no less than thirty (30) days’ written notice in advance by lodging a new support ticket on our customer support portal at https://www.veeam.com/support.html. You’ll still need to pay all relevant Subscription Fees up to and including for the day of termination. You may also choose to terminate your Subscription immediately if Veeam has materially breached the terms of this Agreement and has not remedied the breach within thirty (30) days of receiving notice from you describing the breach in reasonable detail. For more information, including on how to terminate your Subscription, please log a support ticket via https://www.veeam.com/support.html.

54. Veeam may choose to terminate your Subscription at any time by providing you with at least thirty (30) days’ written notice in advance. Veeam may also terminate or suspend your Subscription or access to all or any data immediately if:

  • you breach any of the terms of this Agreement and do not remedy the breach in a timely (as determined by Veeam using its reasonable judgment) manner after being given notice of the breach,

  • you breach any of the terms of this Agreement and, in Veeam’s reasonable judgment, the breach cannot be remedied,

  • you fail to pay Subscription Fees or other amounts owed to Veeam or the applicable Reseller, or

  • you or your business become insolvent, your business goes into liquidation or has a receiver or manager appointed over any of its assets, you become insolvent or make any arrangement with your creditors or become subject to any similar insolvency event, including any bankruptcy filing, in any jurisdiction.

55. No refund is due to you if you terminate your Subscription or Veeam terminates it in accordance with this Agreement.

56. Once a Subscription is terminated by you or us, User Data will no longer be available for you to access. We retain it for a period thirty (30) days consistent with our data retention policy, during which, as a subscriber, you can reactivate your Subscription and once again access the User Data by paying the applicable then-current Subscription Fees. You can get in touch with us to have User Data removed completely if you wish or alternatively, we can provide a quote to download all your backed-up data into local storage files. Please contact support at https://www.veeam.com/support.html to request a quote for the provision of backup data to local files.

WARRANTIES AND UNDERTAKINGS

57. You warrant and undertake that you shall reasonably assist Veeam in the investigation of any fraudulent use or other misuse of the Services.

58. Any and all commitments, indemnities and other terms and conditions offered by Veeam with respect to use of the Services are made directly by Veeam to you in accordance with this Agreement and do not extend to a Reseller. You warrant that you are responsible for any harmful materials introduced by your Administrators or Authorized Users through use of the Services.

WARRANTY DISCLAIMERS

59. ALL SERVICES, DOCUMENTATION, SUPPORT OR ANY OTHER SERVICE, ASSISTANCE OR MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

60. WE DO NOT WARRANT THAT THE SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.

61. Veeam provides no warranty on the delivery of any future functionality or modification or features or dependent on any oral or written public comments we make regarding future functionality or modification or features. You agree that your purchases are not contingent on any future functionality or features of Services.

62. IN SOME JURISDICTIONS, THERE MAY BE NON-EXCLUDABLE WARRANTIES, GUARANTEES OR OTHER RIGHTS PROVIDED BY LAW (“NON-EXCLUDABLE GUARANTEES”). THEY STILL APPLY – THIS AGREEMENT DOES NOT EXCLUDE, RESTRICT OR MODIFY THEM. EXCEPT FOR NON-EXCLUDABLE GUARANTEES AND OTHER RIGHTS YOU HAVE THAT WE CANNOT EXCLUDE, WE’RE BOUND ONLY BY THE EXPRESS PROMISES MADE IN THIS AGREEMENT.

63. OUR LIABILITY FOR BREACH OF A NON-EXCLUDABLE GUARANTEE IS LIMITED, AT OUR OPTION, TO EITHER REPLACING OR PAYING THE COST OF REPLACING THE RELEVANT SERVICE (UNLESS THE NON-EXCLUDABLE GUARANTEE SAYS OTHERWISE).

INDEMNITY

64. You indemnify us, each other Veeam Entity (defined below) and each of its and our officers, directors, employees, and agents from and against all losses, costs (including legal costs), expenses, demands or liability that we incur arising out of, or in connection with, a third-party claim against us in relation to your use of the Service(s) or any third-party product.

65. Notwithstanding any other provision of this Agreement, except with the express prior written consent of Veeam, you shall not:

  • settle or compromise any cause of action, suit or other proceeding if the settlement or compromise obliges any Veeam ENTITY to make any payment or bear any liability or be subject to any injunction or other interim measures by reason of such settlement or compromise;

  • assume any obligation or grant any rights or licenses on behalf of any Veeam ENTITY; or

  • make any statement at any time admitting liability for or on behalf of any Veeam ENTITY.

LIABILITY

66. OTHER THAN LIABILITY THAT CAN’T BE EXCLUDED OR LIMITED BY LAW OR WHICH ARISES FROM OUR FRAUD, GROSS NEGLIGENCE OR WILFUL MISCONDUCT, VEEAM’S LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED AS FOLLOWS:

  • Veeam WILL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF DATA, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR SPECIAL LOSS, DAMAGE OR EXPENSE; and

  • THE TOTAL AGGREGATE LIABILITY OF VEEAM UNDER THIS AGREEMENT IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL AMOUNT YOU PAID US (OR A RESELLER) FOR YOUR SUBSCRIPTION IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.

67. VEEAM DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE), INCLUDING DATA STORAGE SERVICE PROVIDERS, OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

68. YOU UNDERSTAND THAT USE OF THE SERVICES NECESSARILY INVOLVES TRANSMISSION OF USER DATA AND OTHER DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY USER DATA OR OTHER DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS.

69. VEEAM DOES NOT GUARANTEE THAT THE SERVICES OR OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF USER DATA OR OTHER DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NOT BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS.

70. VEEAM WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL.

GOVERNING LAW
71. This Agreement, as well as any matters relating to this Agreement, is governed by the laws of the State of Ohio, USA (excluding any conflict of laws rule or principals that might refer such construction to the laws of another jurisdiction). The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.  Veeam shall be entitled to injunctive relief in connection with any breach or threatened breach of this Agreement or enforcement or recognition of any award or order in any appropriate jurisdiction.  The parties hereby agree that each is waiving all respective rights to a trial by jury regarding any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services. Any claim by either party arising out of or related to this Agreement must be brought no later than two (2) years after it has accrued. If Veeam commences litigation in connection with this Agreement, it will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
INTELLECTUAL PROPERTY

72. As between the parties, Veeam retains all rights, title and interest in and to its patents, patent applications, patent disclosures, inventions and improvements (whether patentable or not), trademarks (and similar rights), copyrights and copyrightable works (including computer programs) and registrations and applications therefor, including any rights in software, firmware, or source code, trade secrets, know-how, database rights, drawings, embodiments of any of the foregoing and all other forms of intellectual property recognized in any jurisdiction (collectively, “Intellectual Property”).

73. Any and all updates, derivative works, changes, enhancements, updates, upgrades or other modifications of or to any Intellectual Property related to any Service or Intellectual Property incorporating any of Veeam’s confidential or proprietary information will be owned solely and exclusively by Veeam and you hereby irrevocably assign to Veeam all right, title, and interest in and to all of the foregoing, including all Intellectual Property rights included or embodied therein.

74. If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to Veeam about or in connection with the Services or any Veeam program, including, without limitation, any ideas, concepts, know-how or techniques contained therein (collectively, “Feedback”), then you hereby grant Veeam a worldwide, fully paid-up, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement limits Veeam’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

IMPORTANT BACKGROUND

75. We aren’t liable to you for any failure or delay in performance of any of our obligations under this Agreement arising out of any event or circumstance beyond our reasonable control.

76. Any notice you send to Veeam must be sent to VDC.customersuccess@veeam.com, in addition to any other addressee expressly set forth in this Agreement with respect to the subject matter of such notice.  Notices or questions related to our processing of personal information, or the terms of the Data Protection should also be sent to privacy@veeam.com. Any notices we send to you will be sent to the email address you’ve provided us (or the Reseller) through your Subscription.

77. You must not use the Services in violation of any export or trade embargo laws that apply to you.

78. We may block your access, terminate your Subscription, or refuse to process a payment if we reasonably believe there’s a risk – like a potential breach of a law or regulation – associated with you, your company, your Subscription, or a payment. Examples of where we might do this include transactions where the payment is from a sanctioned person or country; or where we reasonably believe there is a legal or regulatory risk or a risk of loss being suffered by us or our customers or partners. You represent and warrant that You’re not i) listed in any sanctions-related list of designated persons maintained by the U.S. Department of Treasury’s Office of Foreign Asset Controls, the U.S. Department of State, the U.S. Department of Commerce, the European Union, His Majesty’s Treasury of the United Kingdom, the United Nations, or any other applicable governmental authority; (ii) organized under the laws of or resident in a country or region which is itself the subject of any sanctions (presently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the Donetsk People’s Republic region of Ukraine, and the Luhansk People’s Republic region of Ukraine), or (iii) owned or controlled by any person or persons specified in (i) or (ii). We may also block you or Authorized Users if you or the applicable Authorized Users are in or from a country from which we can’t receive payments. We may take any of these actions at our own discretion and without prior notice.

79. Nothing in this Agreement is to be construed as constituting a partnership, joint venture, employment or agency relationship between you and us, or between you and any other subscriber or invited user. You’re solely responsible for resolving disputes between you and any other subscriber.

80. Veeam may assign this Agreement – or any of our rights or obligations in this Agreement – to another Veeam Entity as it deems appropriate. “Veeam Entities” are the companies controlled by or under common control with Veeam VaaS Corporation, whether in existence now or in the future. As used herein, “control” shall mean the power to direct or cause the direction of the management and policies of an entity. You may not assign or transfer to any party, or charge or sub-contract your rights or obligations under this Agreement without Veeam’s express prior written consent.

81. Veeam may amend or update this Agreement at any time by posting an amended or updated version of this Agreement on its website or otherwise make such amended or updated Agreement available to you. Any amended or updated versions of this Agreement will identify the effective date of such amended or updated Agreement, and we encourage you check for amendments and updates often. If you do not agree to any amended or updated version of this Agreement, your only recourse shall be to terminate this Agreement by providing Veeam with written notice of termination, specifying the reason therefor. In no event will you be entitled to any refund or credits with respect to any prepaid amounts in connection with any such termination.

82. In the event any provision in this Agreement is determined to be illegal, invalid or unenforceable, in whole or in part, such provision or part of it shall, to the extent it is illegal, invalid or unenforceable, be deemed not to form part of the Agreement and the legality, validity and enforceability of the remainder of the Agreement shall not be affected.

83. Words like ‘include’ and ‘including’ are not words of limitation and where anything is within our discretion, we mean our sole discretion. In this Agreement, unless the context otherwise requires:

  • the singular includes the plural and vice versa;

  • the use of one gender includes all other genders;

  • where any word or phrase is given a defined meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning; and

  • person means and includes a natural person, firm or corporation.

84. This Agreement, together with any Order, the DPA, the Privacy Policy and any additional terms referenced in any of the foregoing, in each case of all of the foregoing, as may be amended by Veeam from time to time, constitutes  the  entire  agreement between the parties and supersedes all previous and contemporaneous agreements, understandings and arrangements  with respect to the subject matter hereof, whether oral or written. Customer agrees that any varying or additional terms contained in any purchase order or other written notification, or document issued by Customer in relation to the Services in any respect shall be of no effect and all such terms or conditions shall be null and void.  Customer acknowledges and agrees that Customer’s agreement hereunder  is not  contingent  upon the  delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private comments made by Veeam with respect  to future functionality or features  for the Services.

KASTEN END USER LICENSE AGREEMENT

This End User License Agreement (the “EULA” or “Agreement”) is a binding agreement between Kasten, Inc. (“Kasten”) and you (“Licensee”), and establishes the terms and conditions under which Licensee may use the Software and Documentation (as defined below), including, without limitation, the terms and conditions relating to the license grant, intellectual property rights, disclaimers /exclusions/limitations of warranty, indemnity and liability, governing law and limitation periods associated with the Software and Documentation.

LICENSEE ACKNOWLEDGES IT HAS HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT, PRIOR TO ACCEPTANCE OF IT. LICENSEE'S ACCEPTANCE OF THIS AGREEMENT IS EVIDENCED BY LICENSEE'S DOWNLOADING, COPYING, INSTALLING OR USING THE KASTEN SOFTWARE. IF YOU ARE ACTING ON BEHALF OF A LICENSEE THAT IS A COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY FOR WHICH YOU ARE DOWNLOADING, COPYING, INSTALLING OR USING THE SOFTWARE AND DOCUMENTATION. IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, COPY, INSTALL, OR USE THE SOFTWARE, AND YOU MUST PERMANENTLY DELETE THE SOFTWARE.

1.  DEFINITIONS

1.1 “Authorized Persons” means trained technical employees and contractors of Licensee who are subject to a written agreement with Licensee that includes use and confidentiality restrictions that are at least as protective as those set forth in this Agreement.

1.2 “Authorized Reseller” means a distributor or reseller, including cloud computing platform providers, authorized by Kasten to resell licenses to the Software through the channel through or in the territory in which Licensee is purchasing.

1.3 “Confidential Information” means all non-public information disclosed in written, oral or visual form by either party to the other. Confidential Information may include, but is not limited to, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure; or (4) is independently developed by the receiving party without reference to confidential information disclosed hereunder.

1.4 “Documentation” means any administration guides, installation and user guides, and release notes that are provided by Kasten to Licensee with the Software. 

1.5 “Intellectual Property Rights” means patents, design patents, copyrights, trademarks, Confidential Information, know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.6 “Node” means a single physical or virtual computing machine recognizable by the Software as a unique device. Nodes must be owned or leased by Licensee or an entity controlled by, controlling or under common control with Licensee.

1.7 “Edition” means a unique identifier for each distinct product that is made available by Kasten and that can be licensed, including summary information regarding any associated functionality, features, or restrictions specific to the Edition.

1.8 “Open Source Software” means software delivered to Licensee hereunder that is subject to the provisions of any open source license agreement, which may include, without limitation, the GNU Lesser General Public License and the Mozilla Public License. 

1.9 “Software” means any and all software product Editions licensed to Licensee under this Agreement, all as developed by Kasten and delivered to Licensee hereunder. Software also includes any Updates provided by Kasten to Licensee. For the avoidance of doubt, the definition of Software shall exclude any Third-Party Software and Open Source Software.

1.10 “Third-Party Software” means certain software Kasten licenses from third parties and provides to Licensee with the Software, which may include Open Source Software.

1.11 “Update” means a revision of the Software that Kasten makes available to customers at no additional cost. The Update includes, if and when applicable and available, bug fix patches, maintenance release, minor release, or new major releases. Updates are limited only to the Software licensed by Licensee, and specifically exclude new product offerings, features, options or functionality of the Software that Kasten may choose to license separately, or for an additional fee.

1.12 “Use” means to install activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities. 

2. LICENSE GRANT AND RESTRICTIONS

2.1 Enterprise License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Kasten grants to Licensee a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement under Section 14.10 (Assignment)), non-sublicensable, limited term license to install and use the Software, in object code form only, for internal business purposes (and not for managing third party data), unless terminated in accordance with Section 4 (Term and Termination).

2.2 Starter License. This section shall only apply when Licensee licenses the Starter Edition of the Software. The license granted herein is for a maximum of 5 Nodes and for a period of 12 months from the date of the Software release that embeds the specific license instance. Updating to a newer Software (minor or major) release will always extend the validity of the license by 12 months. If Licensee wishes to upgrade to an Enterprise License instead, Licensee will be required to place an order with an authorized Reseller. Licensee is required to provide accurate email and company information, if representing a company, when accepting this Agreement. Under no circumstances will a Starter License be construed to mean that the Licensee is authorized to distribute the Software to any third party for any reason whatsoever.

2.3 Evaluation License. This section shall only apply when Licensee has licensed the Software for an initial evaluation period. The license granted herein is valid only one time 30 days, starting from date of installation, unless otherwise explicitly designated by Kasten (“Evaluation Period”). Under this license the Software can only be used for evaluation purposes. Under no circumstances will an Evaluation License be construed to mean that the Licensee is authorized to distribute the Software to any third party for any reason whatsoever. If Licensee wishes to upgrade to an Enterprise License instead, Licensee will be required to place an order with an authorized Reseller. If Licensee does not wish to upgrade to an Enterprise License at the end of the Evaluation Period Licensee’s rights under this Agreement shall terminate, and Licensee must delete all Kasten Software.

2.4 License Restrictions. Except to the extent permitted under this Agreement, Licensee will not nor will Licensee allow any third party to: (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software or Documentation; (iv) remove any proprietary notices or labels from the Software or Documentation; (v) publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Software. Licensee will comply with all applicable laws and regulations in Licensee’s use of and access to the Software and Documentation. 

2.5 Responsibility for Use. The Software and Documentation may be used only by Authorized Persons and in conformance with this Agreement. Licensee shall be responsible for the proper use and protection of the Software and Documentation and is responsible for: (i) installing, managing, operating, and physically controlling the Software and the results obtained from using the Software; (ii) using the Software within the operating environment specified in the Documentation; and; (iii) establishing and maintaining such recovery and data protection and security procedures as necessary for Licensee's service and operation and/or as may be specified by Kasten from time to time.

2.6 United States Government Users. The Software licensed under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

3. SUPPORT

3.1 During the Term (as defined below) and subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensee may submit queries and requests for support for Enterprise Licenses by submitting Service Requests via Veeam Support Portal (https://my.veeam.com). Support is not provided for Starter and Evaluation Licenses. Licensee shall be entitled to the support service-level agreement specified in the relevant order form or purchase order (“Order Form”) between Licensee and the Reseller and as set forth in Kasten’s Support Policy, a copy of which can be found at  https://www.veeam.com/support-policy.html  . Licensee shall also be permitted to download and install all Updates released by Kasten during the Term and made generally available to users of the Software. Software versions with all updates and upgrades installed is supported for six months from the date of release of that version.

3.2 Starter Edition Support. If the Licensee has licensed Starter Edition of the Software, you will have access to the Kasten K10 Support Community (https://community.veeam.com/groups/kasten-k10-support-92), but Kasten cannot guarantee a service level of any sort. Should a higher level of support be needed, Licensee has the option to consider entering into a Purchase Agreement with Kasten for licensing a different Edition of the Software.

4. TERM AND TERMINATION

4.1 Term. Except for Starter and Evaluation licenses, the term of this Agreement shall commence on the date of download and shall, unless terminated earlier in accordance with the provisions of Section 4.2 below, remain in force for the Subscription Period as set forth in the applicable Order Form(s) (the “Term”). The Term for Starter and Evaluation Licenses is set forth in section 2.2 and 2.3, respectively. The parties may extend the Term of this Agreement beyond the Subscription Period or beyond the term for Starter or Evaluation Licenses by executing additional Order Form(s) with and the payment of additional licensing fees to a Reseller.

4.2 Termination. Either party may immediately terminate this Agreement and the licenses granted hereunder if the other party fails to cure a material breach of any material term or condition of this Agreement within thirty (30) days of receipt of written notice specifying such breach.

4.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, (i) any amounts owed to Kasten under this Agreement will be immediately due and payable; (ii) all licensed rights granted in this Agreement will immediately cease; and (iii) Licensee will promptly discontinue all use of the Software and Documentation in Licensee’s possession or control.

4.4 Survival. The following Sections of this Agreement will remain in effect following the expiration or termination of these General Terms for any reason: 4.3 (Effects of Termination), 4.4 (Survival), 5 (Third Party Software), 8 (Ownership), 9.2 (Third-Party Software), 9.3 (Warranty Disclaimer), 10 (Limitations of Liability), 11.2 (Exceptions to Kasten Obligation), 12 (Export), 13 (Audit), and 14 (General). 

5. THIRD PARTY AND OPEN SOURCE SOFTWARE
Certain Third-Party Software or Open Source Software (Kasten can provide a list upon request) that may be provided with the Software may be subject to various other terms and conditions imposed by the licensors of such Third-Party Software or Open Source Software. The terms of Licensee’s use of the Third-Party Software or Open Source Software is subject to and governed by the respective Third-Party Software and Open Source licenses, except that this Section 5 (Third-Party Software), Section 9.2 (Third Party Software), 9.3 (Warranty Disclaimer), Section 10 (Limitations of Liability), and Section 134 (General) of this Agreement also govern Licensee’s use of the Third-Party Software. To the extent applicable to Licensee’s use of such Third-Party Software and Open Source, Licensee agrees to comply with the terms and conditions contained in all such Third-Party Software and Open Source licenses.
6. FEES
Fees for licensing and use of the Software shall be set forth in separate Order Form(s) between the Licensee and a Reseller.
7. USAGE DATA
Kasten may collect, accumulate, and aggregate certain usage statistics in order to analyze usage of the Software, make improvements, and potentially develop new products. Kasten may use aggregated anonymized data for any purpose that Kasten, at its own discretion, may consider appropriate.
8. OWNERSHIP
As between Kasten and Licensee, all right, title and interest in the Software, Documentation and any other Kasten materials furnished or made available hereunder, all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Licensee regarding the Software and Documentation, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Kasten or Kasten’s licensors and providers, as applicable. Licensee hereby does and will irrevocably assign to Kasten all evaluations, ideas, feedback and suggestions made by Licensee to Kasten regarding the Software and Documentation (collectively, “Feedback”) and all Intellectual Property Rights in and to the Feedback. Except as expressly provided herein, no licenses of any kind are granted hereunder, whether by implication, estoppel, or otherwise.
9. LIMITED WARRANTY AND DISCLAIMERS

9.1 Limited Warranty. Kasten warrants that the Software, in its unmodified form as initially delivered or made available to Licensee, will perform substantially in accordance with the then-current Documentation for a period of ninety (90) days from the date the Software is delivered to Licensee (the “Warranty Period”). This warranty does not apply to Starter and Evaluation Licenses. In the event the Software fails in a material respect to operate in accordance with the Documentation during the Warranty Period and Kasten is unable to correct the defect, Kasten’s sole and exclusive liability and Licensee’s sole and exclusive remedy shall be a refund of the License fee, if any, paid by Licensee for the Software. The foregoing limited warranty will not apply if failure of the Software is the result of damage or misuse caused by Licensee. In the event a reported problem with the Software is Licensee’s fault, Licensee agrees to reimburse Kasten for its correction efforts in accordance with its then standard rates.

9.2 Third-Party Software. Except as expressly set forth in this Agreement, Third-Party Software (including any Open Source Software) are provided on an “as-is” basis at the sole risk of Licensee. Notwithstanding any language to the contrary in this Agreement, Kasten makes no express or implied warranties of any kind with respect to Third-Party Software provided to Licensee and shall not be liable for any damages regarding the use or operation of the Third-Party Software furnished under this Agreement. Any and all express or implied warranties, if any, arising from the license of Third-Party Software shall be those warranties running from the third party manufacturer or licensor to Licensee.

9.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, KASTEN AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SOFTWARE OR TO KASTEN’S MAINTENANCE, PROFESSIONAL OR OTHER SERVICES. KASTEN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. KASTEN AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT AS STATED ABOVE, KASTEN AND ITS SUPPLIERS PROVIDE THE SOFTWARE ON AN “AS IS” BASIS. KASTEN PROVIDES NO WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE.

10. LIMITATIONS OF LIABILITY

10.1 EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR BREACHES OF SECTION 8 (OWNERSHIP), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR RELIANCE DAMAGES, INCLUDING ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR DOCUMENTATION, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.

10.2 LIMITATION OF DAMAGES. EXCEPT FOR BREACHES OF SECTION 8 (OWNERSHIP), EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, DOCUMENTATION, OR SERVICES PROVIDED BY KASTEN, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE FOR THE SOFTWARE, DOCUMENTATION OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS FOLLOWING DELIVERY. LICENSEE AGREES THAT KASTEN’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.

10.3 THIRD PARTY SOFTWARE. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN THIS AGREEMENT, KASTEN SHALL NOT BE LIABLE FOR ANY DAMAGES REGARDING THE USE OR OPERATION OF ANY THIRD-PARTY SOFTWARE FURNISHED UNDER THIS AGREEMENT.

10.4 LIMITATION OF ACTIONS. IN NO EVENT MAY LICENSEE BRING ANY CAUSE OF ACTION RELATED TO THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY.

11. INDEMNIFICATION

11.1 Kasten Obligation. Kasten shall, at its expense, defend Licensee from third party claims brought against Licensee, and shall pay or reimburse Licensee for all damages, costs and expenses payable by Licensee to such third party to the extent they are awarded in a final judgment or agreed to in a settlement, as a result of any third party claims against Licensee alleging that the Software or any component thereof infringes or misappropriates any U.S. patent issued prior to the Effective Date, copyright, or trade secret; provided that Licensee: (1) promptly notifies Kasten in writing of the claim; (2) grants Kasten sole control of the defense and settlement of the claim; and (3) provides Kasten, at Kasten’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

11.2 Exceptions to Kasten Obligation. Kasten’s above indemnity obligations do not apply to, and Licensee shall indemnify, defend and hold Kasten harmless from any damages, costs, expenses and liabilities arising from (1) any use of the Software or Documentation beyond the scope of license granted herein, (2) any modification or derivative works of the Software or Documentation made by or for Licensee, (3) use of a superseded infringing version of the (or component thereof) by Licensee after release of a non-infringing version by Kasten, or (4) any use or combination of the Software with any technology, software or hardware not supplied by Kasten, if such alleged infringement would be avoided by use of the Software, alone or with other technology, software or hardware.

11.3 Claim of Infringement. If a claim of infringement occurs that is subject to Section 11.1 and not subject to the exceptions in Section 11.2, or if Kasten determines that a claim is likely to occur, Kasten may, in Kasten’s sole discretion: (1) procure for Licensee the right or license to continue to use the affected Software, free of the infringement claim; or (2) replace or modify the affected Software, to make it non-infringing provided that the replacement Software substantially conforms to Kasten's then-current specification for such Software. If selected by Kasten, the remedy provided under this Section 11.3 shall be Licensee’s sole and exclusive remedy for any claim of Intellectual Property Rights infringement.

11.4 Exclusive Remedy. Sections 11.1 through 11.3 state the sole and exclusive obligations and liability of Kasten for any Intellectual Property Rights infringement and are in lieu of any warranties of non-infringement, all of which are disclaimed.

12. EXPORT
The Software, Documentation and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Software, Documentation and related technical data.
13. AUDIT
During the term of this Agreement and for a period of one year thereafter, Kasten may, during normal business hours and upon reasonable prior notice to Licensee, inspect the files, computer processors, equipment and facilities of Licensee to verify Licensee’s compliance with this Agreement and to ensure that the Software is being used in accordance with the quantity and type of licenses purchased by Licensee from authorized Resellers.
14. GENERAL

14.1 No Agency. Kasten and Licensee each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (1) give either party the power to direct or control the day-to-day activities of the other; (2) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (3) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.

14.2 Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Licensee warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Licensee’s use of the Software and Documentation including, without limitation, those concerning Intellectual Property Rights, invasion of privacy, defamation, and the import and export of Software and Documentation.

14.3 Force Majeure. Except for the duty to pay money, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, fires, flood, storm, explosions, acts of God, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of such party.

14.4 Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of the State of New York without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York and the parties hereby consent to the personal jurisdiction and venue therein.

14.5 Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted use of the Software or Documentation. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party's rights under the pertinent provisions of this Agreement, without limiting its right to pursue any other legal remedies available to it.

14.6 Entire Agreement and Waiver. This Agreement and any exhibits hereto shall constitute the entire agreement and contains all terms and conditions between Kasten and Licensee with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. This Agreement may be changed only by written agreement signed by both Kasten and Licensee. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.

14.7 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.

14.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered (including by facsimile), shall be deemed an original, and all of which shall constitute one and the same agreement. 

14.9 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.

14.10 Assignment. Neither party may, without the prior written consent of the other party (which shall not be unreasonably withheld), assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void. Notwithstanding the foregoing, Kasten may assign its rights and benefits and delegate its duties and obligations under this Agreement without the consent of Licensee in connection with a merger, reorganization or sale of all or substantially all relevant assets of the assigning party; in each case provided that such successor assumes the assigning party’s obligations under this Agreement.