means any entity that directly or indirectly controls, is controlled by, or is under common control with either party hereto. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the economic interests of the subject entity.
means individual employees or contractors of Customer who are authorized by Customer to access and use the Services and who are registered by Customer with Veeam as an authorized user of the Services.
means an individual or entity entering into this Agreement with Veeam.
means Customer’s data that is input, processed, maintained, stored or transmitted by, in or through the Services. As set forth in more detail in the relevant Statement of Work, to the extent any Customer Data includes Personal Data, as that term is defined in applicable laws, either Customer or Veeam may be the “data controller” or “business” with respect to such Customer Data, depending on the specific activities and purposes for which Customer Data is being processed.
means personal data of Customer employees, contractors, or direcetors which You provide Veeam to enable Veeam’s administration of this Agreement and the provision of the Services set forth in the Statement of Work. Veeam is always a “data controller” or “business”, as those terms are used in relevant laws and regulations, with respect to such Data, and its collection, processing, disclosure, and use of such Data is set forth in Veeam’s Privacy Policy, available at https://www.veeam.com/legal/privacy-notice.html, which Veeam may update from time to time.
means Veeam’s user guides and other end user documentation for the Services, as may be made available by Veeam to Customer on Veeam’s website. Documentation may be updated from time to time upon Veeam’s sole discretion; Customer agrees that it will monitor Veeam’s website for relevant updates to Documentation.
means the services purchased by Customer and provided by Veeam, as specified in the relevant Statement of Work.
(“SOW”) means a document that describes Services purchased by Customer and provided by Veeam under this Agreement.
means all computer hardware, software, equipment, data, models, analytics, algorithms, processes, formulae and any other technology, content, materials or proprietary information used by Veeam to perform the Services.
means the outcome of the Services provided by Veeam to You in accordance with a Statement of Work.
A legally binding agreement between Customer and Veeam will only be established upon the execution of a SOW that details the specific services to be performed by Veeam. Customer may place orders in any manner, but only an executed SOW constitutes a mutual legally binding agreement.
Veeam grants to Customer and its Authorized Users a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to use the Deliverables resulting from services in accordance with the Documentation, solely for Customer’s internal business purposes..
Customer shall designate in writing one of its employees as its principal contact for communicating with Veeam, and shall provide all Customer POC Data as may be necessary for Veeam to provide the Services. Customer is responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Services via the Internet. Customer shall be responsible for all use of the Services by Authorized Users. Customer shall use the Services in compliance with applicable laws and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Services, or any part thereof, or make it available to anyone other than its Authorized Users and Affiliates; (ii) fraudulently use the Services; (iii) process or permit to be processed the data of any third party, except as may be expressly authorized in this Agreement or in writing by Veeam; (iv) send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs through, in or to the Services; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or the data contained therein; (vi) modify, copy, decompile, disassemble or create derivative works from, or otherwise attempt to derive the source code of, the Services, or any portion thereof; (vii) access, alter, or destroy any data or information of Veeam or any other customer of Veeam by any means or device, or attempt or permit any other person to do any of the foregoing; (viii) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (ix) delete, alter, add to or fail to reproduce in and on the Services the name of Veeam and any copyright or other notices appearing in or on the Services or which may be required by Veeam at any time.
Any use of the Services in breach of this Agreement, the Documentation or the SOW by Customer or Authorized Users that in Veeam’s judgment threatens the security, integrity or availability of the Services, in whole or in part, may result in Veeam immediately suspending Customer’s and its Authorized Users’ access to or use of the Services.
Veeam may, in its sole discretion, use subcontractors to perform or provide the Services, in whole or in part, and shall be responsible for the acts and omission of its subcontractors.
Customer owns the Customer Data and hereby grants to Veeam, its Affiliates, and applicable contractors a worldwide, non-exclusive license to use, process, host, collect, copy, store, transmit, display, modify and create derivative works of the Customer Data: (a) as reasonably necessary for Veeam to provide the Services in accordance with this Agreement and (b) to analyze the use of and make improvements to the Services and develop new services and models, including through machine learning. Subject to the rights and licenses granted in this Section 5.1, Veeam acquires no right, title or interest from Customer in or to any Customer Data. Unless otherwise agreed in writing by the parties, Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data.
Except for the rights expressly granted under this Agreement, Veeam and its licensors retain all right, title, and interest in and to the Services, Documentation, Deliverables and the Veeam Technology, including all intellectual property rights embodied therein. For the avoidance of doubt, nothing herein shall be construed as prohibiting Veeam from utilizing or disclosing Customer Data in an anonymized and aggregated form to optimize or improve the Services or otherwise operate Veeam’s business.
The Services may utilize confidential and proprietary Veeam or third party data howsoever compiled, and all such data is owned by Veeam or the applicable third party source or vendor. Neither Veeam nor its third party data sources make any representations or warranties regarding any such data, which may not be accurate, complete, or up to date, and are subject to change from time to time, and neither Veeam nor its thiurd party sources assume any responsibility for the accuracy, completeness, or currency of the data.
Veeam shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services or otherwise utilize any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorized Users relating to the features, functionality or operation of the Services or Deliverables (collectively, “Feedback”). Veeam shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
The parties acknowledge and agree that the Services are procured via the Veeam channel. Therefore, all pricing and payment terms and related invoicing are between You and Your selected Veeam partner, except as may be set forth in a specific Statement of Work.
Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer shall be permitted to deduct and withhold from the purchase price all taxes that Customer may be required to deduct and withhold under local tax laws. To the extent that amounts are withheld, amounts withheld by Customer shall be remitted to the local tax authority and receipts will be provided to the seller. To the extent that Customer becomes aware of any withholding taxes applicable to the payment of the purchase price, Customer shall provide prompt notice to the sellers of the amount of such tax and the reason for such withholding. The parties will make reasonable efforts to minimize withholding taxes on the payments referenced in this agreement. Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Veeam’s net income or property) unless Customer provides Veeam with a valid resale certificate authorized by the appropriate taxing authority.
Veeam warrants that: (i) Veeam shall use reasonable endeavors to provide Services and, if applicable, deliver the Deliverables to You, in accordance with a Statement of Work in all material respects and (ii) Veeam will employ then-current, industry-standard measures to test the Services, as appropriate, to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Services. As Customer’s exclusive remedy and Veeam’s entire liability for a breach of the warranties set forth in this Section 7.1, Veeam shall use commercially reasonable efforts to correct the non-conforming Services at no additional charge to Customer, and in the event Veeam fails to successfully correct the Services within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Services and get pro-rated refund, but only for the non-conforming Services under a specific SOW. The remedies set forth in this subsection shall be Customer’s sole remedy and Veeam’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Services have been utilized in accordance with the Documentation, this Agreement and applicable law.
Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer, its Affiliates and Authorized Users) will not violate any applicable laws or regulations, (ii) it will not cause a breach of any agreements with any third parties or unreasonably interfere with the use by other Veeam customers of the Services, and (iii) the information it, its Affiliates and/or Authorized Users transmit with respect to the Services complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force. Customer acknowledges that Veeam does not monitor the content of the information passing through the Services. In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Veeam will have the right to suspend immediately any Services if deemed reasonably necessary by Veeam to prevent any harm to Veeam, the Services, any other services, its other customers or its business. Veeam will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, including the reimbursement of any damages or liability caused by any such breach, Veeam will promptly restore the Services.
a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1, VEEAM AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS NOT RELYING AND HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH UNDER SECTION 7.1. VEEAM MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR REGARDING ANY NON-VEEAM APPLICATION WITH WHICH THE SERVICES MAY INTEROPERATE.
b) Veeam does not and cannot control the flow of data to or from the Services and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof) and/or the Services. Although Veeam will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Veeam cannot guarantee that such events will not occur. VEEAM DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
8.1. IN NO EVENT WILL VEEAM OR ITS THIRD PARTY LICENSORS BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR ANY TERMS OR CONDITIONS RELATED HERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERRORS OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES, WHETHER OR NOT VEEAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VEEAM OR ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES UNDER THE SPECIFIC SOW AND FOR THE SPECIFIC SERVICES UNDER WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT FROM WHICH SUCH LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
Subject to Section 9.3, Veeam will indemnify and defend Customer, its Affiliates and its and their respective officers, directors, employees and agents (“Customer Indemnitees”) from any and all claims, demands, suits or proceedings (“Claims”) brought against any Customer Indemnitee by a third party alleging that the Services or Deliverables, as provided by Veeam to Customer or any of its Affiliates under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Veeam will indemnify Customer Indemnitees for all damages, costs and reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Veeam, in connection with an Infringement Claim. In the event of any such Infringement Claim or if Veeam believes that the Services or any Veeam Technology may become the subject of a claim of intellectual property infringement or misappropriation, Veeam may, at its sole option and expense: (i) obtain the right to permit Customer and its Affiliates, as applicable, to continue using the Services, (ii) modify or replace the relevant portion(s) of the Services with a non-infringing or non-misappropriating alternative within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Services and make a pro-refund to Customer or its Affiliates, as applicable, for the Services. Notwithstanding the foregoing, Veeam will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Services made by a person or entity other than Veeam, (2) the combination of the Services with other products, processes or technologies not provided by Veeam (where the infringement would have been avoided but for such combination), or (3) any Customer Indemnitee’s use of the Services other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 9.1 are Veeam’s sole and exclusive obligations, and Customer Indemnitee’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
Subject to Section 9.3, Customer will indemnify and defend Veeam, its Affiliates and its and their respective officers, directors, employees and agents (“Veeam Indemnitees”) from any and all Claims brought against any Veeam Indemnitee by a third party (i) based on Customer’s use of the Services other than in accordance with the Documentation and this Agreement or (ii) any allegation of violation of a third party’s rights arising from Customer’s provision and processing of the Customer Data, including its disclosure of Customer Data to Veeam. Customer will indemnify Veeam Indemnitees for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer.
The party seeking indemnity under this Section 9 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the Claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the Claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense and the Indemnitor may not settle any Claim without the Indemnitee’s prior written consent if such settlement includes an admission of wrongdoing on the part of any Indemnitee or any payment obligation on any Indemnitee that is not fulfilled in its entirety by the Indemnitor.
This Agreement is effective during all active and open SOW or SOWs executed between parties and shall continue unless terminated as set forth below.
Either party may terminate this Agreement by written notice to the other party in the event that (a) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, in the event Customer breaches any restrictions or limitations on its right to access or use the Services or any of its confidentiality or payment obligations hereunder, Veeam may immediately suspend Customer’s right and ability to access or use the Services without notice and/or terminate this Agreement with immediate effect on notice to Customer.
Upon request by Customer at any time during the Term and for a period of thirty (30) days thereafter, Veeam will make available to Customer, at no cost, for download a file of Customer Data. If Customer has not made such a request and retrieved its Customer Data within thirty (30) days after the termination of this Agreement, Veeam shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, be entitled to delete all Customer Data; provided, however, that Veeam will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted in the normal course of Veeam’s business; provided further that in all cases Veeam will continue to protect the Customer Data in accordance with its obligations under this Agreement.
Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer will immediately terminate and Customer will cease using the Services and Veeam’s Confidential Information. Termination of this Agreement will not affect any open and active SOW. Termination for any reason, other than termination for cause by Customer pursuant to Section 11.2(i) or termination by Veeam for end of life pursuant to Section 11.2, shall not relieve Customer of the obligation to pay all future amounts due under all SOWs. The sections titled “Definitions,” “Confidentiality,” “Data Ownership and Feedback,” “Fees, Expenses and Taxes,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination of this Agreement.
Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer without Veeam’s prior written consent. Notwithstanding the foregoing, Customer may assign this Agreement in its entirety (including all SOWs), upon notice and without the consent of Veeam, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid and Customer is not otherwise in breach of this Agreement. Veeam may assign this Agreement upon written notice to Customer.
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives of the parties. If the executives are unable to reach a mutually acceptable resolution within thirty (30) days after one party gives the other party written notice of the dispute, then the parties will subject themselves to the mediation procedures set forth below, at the request of either party, before seeking any other means of resolving the dispute.
This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Subject to Section 12.2 and Section 12.6, with respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in New York County, New York, USA. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries), or (iii) by email, in which case notice will be deemed given upon confirmation of receipt, in each case, to the address of the party set forth in the preamble to this Agreement (or, with respect to notices sent by email, to the email address of the party set forth on the applicable SOW) and addressed to the signatory for such party to this Agreement or to such other address and/or signatory specified in a notice provided under this Section 12.3.
If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party, including computer related attacks, hacking, pandemics or other public health emergencies (whether or not declared), changes in applicable law, acts of governmental authorities, acts of God or acts of terrorism (each, a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction but shall be obligated to use its commercially reasonable efforts to mitigate and remove any such Force Majeure Event and recommence performance hereunder as soon as reasonably practicable.
Either party is entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond in the event that the other party breaches its obligations hereunder..
The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. Except as expressly set forth in Section 9 with respect to Customer Indemnitees and Veeam Indemnitees, there are no third-party beneficiaries under this Agreement.
The Services and/or the Deliverables may be subject to export or import regulations in various countries, including, but not limited to, U.S. and E.U. export control laws, as well as U.S., E.U., U.K., and U.N. sanctions (“Export Regulations”). You must comply with all Export Regulations and agree to be solely responsible for determining whether you may export, re-export, or import the Services and/or the Deliverables in compliance with legal requirements. Further, You confirm that You will not use the Services and/or the Deliverables for any prohibited purposes under Export Regulations. By using the Services and/or the Deliverables, You confirm that You are not (i) included on any sanctions-related list of designated persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, 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 relevant governmental authority; (ii) organized under the laws of, or residing in, a country or region that is itself subject to any sanctions; or (iii) owned or controlled, directly or indirectly, individually or in the aggregate, by any person or persons specified in (i) or (ii).
If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government users as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. 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 the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 12.9 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
Customer agrees that it has not received or been offered any illegal or improper bribe, payment, gift, or thing of value from any of Veeam employees or its agents in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Veeam.
The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
This Agreement, together with any Statements of Work and any attachments or schedules constitutes the entire agreement between the parties. pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties and related to the subject matter are expressly canceled. The parties agree that any term or condition stated in any purchase order or other document issued or provided by Customer is void and of no effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this Agreement, (2) the applicable Statement of Work (unless a term or condition in such Statement of Work expressly supersedes a specific term or condition in this Agreement). No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.