PLEASE READ CAREFULLY THESE END USER SERVICES AND LICENSE AGREEMENT (THE “AGREEMENT”) BEFORE ACCESSING, OR USING THE VAST FEDERAL STORAGE SERVICES OR OTHERWISE INSTALLING, USING OR RUNNING ANY VAST FEDERAL SOFTWARE.
BY ACCESSING OR USING THE SERVICES AND THE VAST FEDERAL SOFTWARE IN ANY MANNER, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS AGREEMENT AND YOU REPRESENT THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND PERFORM HEREUNDER.
THIS AGREEMENT IS MADE BETWEEN YOU (“YOU” OR “YOUR”) AND VAST DATA FEDERAL, INC. AND, AS APPLICABLE, ITS AFFILIATES (COLLECTIVELY REFERRED TO AS “VAST FEDERAL”). THIS AGREEMENT APPLIES TO THE SERVICES AND ANY VAST FEDERAL SOFTWARE OBTAINED BY YOU DIRECTLY FROM VAST FEDERAL OR, IF APPLICABLE, INDIRECTLY FROM A VAST FEDERAL PARTNER (AS DEFINED BELOW)). THE TYPES, QUANTITIES AND OTHER USAGE ATTRIBUTES RELATED TO YOUR ACCESS TO THE SERVICES AND YOUR USE OF THE VAST SOFTWARE ARE DESCRIBED IN OTHER DOCUMENT OR A QUOTATION ISSUED BY VAST FEDERAL (THE “ORDER”), OR IN A CORRESPONDING DOCUMENT OR AN AGREEMENT BETWEEN YOU AND A THIRD PARTY LICENSED AND AUTHORISED TO DISTRIBUTE THE SERVICES AND THE VAST FEDERAL SOFTWARE (“VAST FEDERAL PARTNER” and VAST FEDERAL “PARTNER AGREEMENT” RESPECTIVELY).
1. DEFINITIONS
1.1. “Affiliate” means any entity which controls, is controlled or is under common control with either of the parties. Any entity shall be deemed to “control” another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of the other entity or other comparable equity with respect to an entity other than a company.
1.2. “Compatible Hardware” shall mean hardware and hardware configuration that is expressly designated and approved by VAST FEDERAL in the Documentation to run the VAST FEDERAL Software for the purpose of enabling and making the Services available by VAST FEDERAL.
1.3. “Confidential Information” means information, in any form or format related to the business, technology, and operations of the disclosing party, obtained by the other party (“Recipient”) marked confidential, identified as Confidential Information at the time of disclosure or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential. Confidential Information shall not include information that the Recipient can document that: (a) is already known to the Recipient at the time of disclosure under this Agreement; (b) is independently developed by or for the Recipient without reference to or use of the Confidential Information; (c) is already public knowledge or becomes so at a future date through no fault of the Recipient; and (d) is disclosed to the Recipient by a third party without an obligation of confidentiality.
1.4. “Customer Offering” means a managed service data hosting offering which is provided to Your customers from Your premises or from the premises of a third party cloud computing provider engaged by You
1.5. “Documentation” means technical documentation regarding the Services and describing the features and functions of the VAST FEDERAL Software issued and generally provided by VAST FEDERAL to its customers. Such Documentation is available at: https://support.vastdata.com/s/topiccatalog.
1.6. “Installation Services” shall mean services provided by or on behalf of VAST FEDERAL for the installation of the Compatible Hardware, including racking, cabling, and labeling, and the installation of the VAST FEDERAL Software on such Compatible Hardware.
1.7. “Intellectual Property Rights” shall mean all inventions, ideas, concepts, analyses, (whether patented, or patentable, or not), methods, methodologies, designs, processes, patents, patent applications, rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, moral rights, any information, ancillary materials, devices, results, know-how, and all rights relating to the protection of trade secrets and confidential information; design rights and industrial property rights; mask works, software, all code including source code, object code, firmware; and any other proprietary rights relating to intangible property.
1.8 “Open Source Software” shall mean collectively any software that is licensed under an open source, public source, or freeware license, which includes software licensed under licenses approved by, or substantially similar to those approved by, the Open Source Initiative and listed at http://www.opensource.org/licenses, or meets the “Open Source Definition” of the Open Source Initiative or the “Free Software Definition” of the Free Software Foundation and that is integrated into or with the VAST FEDERAL Software.
1.9 “Services” or “Gemini” shall mean services that are provided hereunder by VAST FEDERAL including:
(i) the storage services, including access to and use of the VAST FEDERAL Software, as generally described in the Documentation, and upgrades and updates thereto but expressly excludes new functionality that is marketed and sold as a separate product or service; and
(ii) support and maintenance services for the VAST FEDERAL Software and Compatible Hardware
provided to You by VAST FEDERAL pursuant to the Support Services Terms which is available at https://www.vastdata.com/support-services-terms (the “Support Services Terms”).
1.10 “Services Term” shall mean the Initial Term and any Renewal Term(s), as such terms are defined in Section 9 below, during which You are permitted to obtain, use and access the Services pursuant to an Order or a VAST Federal Partner Agreement or any written agreement executed by You and VAST FEDERAL.
1.11 “VAST FEDERAL Software” shall mean the software components accessed and run by You in machine-readable, object code form only, as part of the Services (including any updates and upgrades thereto provided during the Services Term), for the purpose of enabling You to receive and consume the Services.
2. STORAGE SERVICES LICENSE RIGHTS; RESTRICTIONS
2.1. The commercial terms governing Your access to and the use of the Services and to the VAST FEDERAL Software, are set forth in the VAST Federal Partner Agreement, or in the Order, and such terms shall include the Services Term, the fees payable to the VAST FEDERAL Partner or to VAST FEDERAL, as applicable, for the Services (the “Fees”) and any limitation on the permitted Services capacity. If the Services Term ends, You will be running the VAST FEDERAL Software in an unsupported and unlicensed state and without any VAST FEDERAL warranty or liability. Until such time as You renew the Services, You will not be entitled to any Services including support and maintenance. If You wish to reinstate the Services after a lapsed period following expiration or termination of the Services Term, You will be required to pay an amount equal to the Services Fee that would have been due for the accrued Services during such lapsed period, in addition to the Fees due for the going-forward Services Term.
2.2. VAST FEDERAL grants You, subject to Your full compliance with, and on the terms and conditions (including, as applicable, capacity, fees and Purpose(s)) as set forth herein, in the Order or in a VAST FEDERAL Partner Agreement, a non-exclusive, non-transferable, non-sublicensable, limited and revocable right for the duration of the Services Term and in order to enable Your permitted access and use of the Services to:
2.2.1. (i) install or have installed the VAST FEDERAL Software by or on behalf of VAST FEDERAL or a VAST FEDERAL Partner, for the duration of the Services Term, (ii) access and run (in machine-readable, object code form only) the VAST FEDERAL Software as provided, installed and configured by VAST FEDERAL or the VAST FEDERAL Partner (and allow Your personnel or personnel of Your Affiliates to do the same), solely for Your and Your Affiliates’ use of the Services or VAST FEDERAL Software for the following purposes (A) storage of Your or Your Affiliates internal data and to the extent applicable and permitted under Section 2.4 below, Your customers’ data whose data You store using the Services or VAST FEDERAL Software as part of Your Customer Offering; and/or (B) for installation solely in Your internal non-production environment for the purposes of testing or training only, (collectively (and as applicable) the “Purpose”) and strictly in accordance with the Documentation; and
2.2.2. access and use the Documentation solely in connection with Your (or Your Affiliates, as applicable) consumption of the Services, as permitted hereunder for the Purpose, and provided that all copyright notices are included and maintained therein.
2.2.3. The VAST FEDERAL Software is licensed independently of the Compatible Hardware You have acquired. The VAST FEDERAL Software may be ported between Your duly owned Compatible Hardware units subject to Your prior written notification to VAST FEDERAL.
2.2.4. In the event that You (or your Affiliate as applicable) are exceeding the applicable licensed capacity of Services and VAST FEDERAL Software, You are required to and You agree to pay all additional fees due and payable for the unlicensed capacity that is over and above the applicable licensed capacity of Services and VAST FEDERAL Software.
2.2.5. You shall ensure that Your Affiliates and Your Affiliates’ personnel shall comply with the terms of this Agreement in connection with their use, access or otherwise engagement with the Services and VAST FEDERAL Software. You shall remain responsible and liable for the actions and omissions of Your Affiliates and Your Affiliates’ personnel in connection with their use, access or otherwise engagement with the Services and VAST FEDERAL Software or this Agreement at all times.
2.3. USE RESTRICTIONS
2.3.1. With respect to the VAST FEDERAL Software and any Pre-Release Products, You agree that You will not, nor will You permit any third party to:
(a) distribute, license, sublicense, grant access, assign or otherwise transfer or sell, in whole or in part, the Services or VAST FEDERAL Software to any third party (including disposing in any manner of, the Compatible Hardware while the VAST FEDERAL Software is still installed on it, or allowing a third party who provides services which are similar to the Services to access the VAST FEDERAL Software or Compatible Hardware), except as solely and expressly permitted under Section 2.4 hereunder;
(b) modify, alter, copy, transfer, emulate or create any derivative works of the VAST FEDERAL Software (including Pre-Release Products) and/or the Services or any part thereof;
(c) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code or designs from the VAST FEDERAL Software or Services or any part thereof;
(d) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Services, the VAST FEDERAL Software and/or the Documentation;
(e) bundle, integrate, or attempt to integrate with the Services or VAST FEDERAL Software, any third-party software technology other than as expressly permitted in writing by VAST FEDERAL (including through the Documentation);
(f) use the Services or the VAST FEDERAL Software including Pre-Release Products for any benchmarking or for competing services, activities or competing purposes or use the VAST FEDERAL Software or Services for any unlawful purpose;
(g) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Services, the VAST FEDERAL Software and/or any Pre-Release Products (as defined below), except as expressly permitted by VAST FEDERAL in writing,
(h) run or use the VAST FEDERAL Software in any hardware other than Compatible Hardware and in any location or system other than as set forth in the applicable Order, VAST FEDERAL Partner Agreement, as applicable, or as pre-approved by VAST FEDERAL in writing, or not in accordance with the instructions of, VAST FEDERAL or by the VAST FEDERAL Partner,
(i) use the Services or VAST FEDERAL Software for the purpose of offering and providing services to any third parties including in a service bureau, managed services, commercial hosting services or similar environment, unless otherwise expressly authorized by VAST FEDERAL in writing; or
(j) use the Services or VAST FEDERAL Software in breach or excess of the types, quantities and other usage attributes related to the VAST FEDERAL Software rights or other limitations set forth in this Agreement.
2.3.2. Without limiting the foregoing, You shall ensure that You prevent any unauthorized access and/or unauthorized usage of the Services and VAST FEDERAL Software made available to You hereunder.
2.4. SPECIFIC AUTHORIZATION. VAST FEDERAL may, at its sole discretion, if and to the extent permitted explicitly under a separate written instrument between You and VAST FEDERAL, such as an applicable quotation or Order, allow You to use the Services and the VAST FEDERAL Software for the purpose of offering and providing others with the Services (including in the form of hosted services) solely in conjunction with Your Customer Offering (and never as a standalone service). Any authorization granted to You by VAST FEDERAL under this Section 2.4 and the applicable Order shall be subject to the following terms (together with such other terms and to the extent stated in the applicable Order): (i) You are and shall remain liable to VAST FEDERAL for any acts or omissions of Your customers (including their personnel) to whom You provided or made available the Services; (ii) the Services must be provided by You to such customers under a written agreement with which provide for substantively the same restriction on the use of the Services and VAST FEDERAL Software and provides VAST FEDERAL such rights and protections no less than as set forth under this Agreement; and (iii) no customers to whom you offer, provide, license, sell or otherwise make available the Service under this Agreement, or whose data you store using the Services or VAST FEDERAL Software, or any of their employees, service providers, officers, directors, agents, or beneficiaries, are Sanctioned Person(s), nor are any of the foregoing located in, or using or accessing, the Services from, any Restricted Territory (each as defined in this Agreement below).
2.5. PRE-RELEASE SOFTWARE. VAST FEDERAL may make available to You a beta or pre-release versions of its other software and services (“Pre-Release Products”), by notifying You of the same in writing (including in electronic form). You acknowledge that the Pre-Release Products (i) are not at the level of performance or compatibility of final, generally available products; (ii) may not operate correctly, (iii) may be modified prior to being made generally available; (iv) may not be made for general release, and (v) will not be used in a production environment and not for commercial purposes. NOTWITHSTANDING SECTIONS 3, 7 AND 8, THE PRE-RELEASE SOFTWARE IS PROVIDED FOR EVALUATION PURPOSES ONLY AND ON AN “AS-IS” BASIS AT YOUR OWN RISK WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTIBILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND VAST DATA DISCLAIMS ALL LIABILITIES TO THE MAXIMUM EXTENT PERMITTED BY LAW. Except as otherwise provided in this Section 2.5 the Pre-Release Products to the extent provided by VAST FEDERAL, shall be considered as the VAST FEDERAL Software.
2.6. FEEDBACK. Should You provide VAST FEDERAL with any feedback regarding the use, operation, performance, and functionality of the Services, the VAST FEDERAL Software and any Pre-Release Products, including identifying potential errors and improvements (the “Feedback”), You agree that VAST FEDERAL can use such Feedback in whole or in part thereof, at any time and in any manner, without restrictions. You hereby grant VAST FEDERAL a perpetual, irrevocable, worldwide, unlimited, sublicensable, fully paid-up and royalty-free right to use the Feedback and any derivative, modification and enhancement thereof in any manner.
2.7. MARKS AND USE OF NAME. This Agreement does not grant You any rights, title or interest to VAST FEDERAL'S or its licensors’ trademarks, service marks, trade name or logo.
2.8. OPEN SOURCE AND THIRD-PARTY SOFTWARE. The VAST FEDERAL Software may contain components of third-party software including open source software. Third party and open source software that is delivered as part of the VAST FEDERAL Software are included in the warranties and support commitments applicable to the VAST FEDERAL Software, provided they are not removed or used separately from the VAST FEDERAL Software and that Your use of the VAST FEDERAL Software is as permitted and is in compliance with this Agreement (including ay Order).
2.9. EXPORT RESTRICTIONS AND RELATED REPRESENTATIONS. You acknowledge that the VAST FEDERAL Software and Documentation is subject to United States’, the European Union’s and other countries’ export jurisdiction, as applicable. You hereby represent and warrant that You, Your Affiliates (and to the extent applicable and permitted under this Agreement any customers to whom You offer, provide, license, sell or otherwise make available the Service or VAST FEDERAL Software or whose data You store using the Services or VAST FEDERAL Software), and any employees, service providers, officers, directors, agents, or beneficiaries or any of the foregoing, are not and shall not be a (i) Sanctioned Person(s), and (ii) shall not operate in, reside in, or use or access the Services for VAST FEDERAL Software, in or from a Sanctioned Country. Without derogating from the foregoing, You will comply with all applicable national and international laws that apply to Your use of the VAST FEDERAL Software, including United States Export Administration Regulations, as well as end user, end use and destination restrictions which may be issued by the United States and other governments from time to time. You will obtain all required authorizations, permits, or licenses to export, re-export or import, as required.
For the purposes hereof the following terms shall at all times have the following the following meanings:
“Sanctioned Person” shall mean (a) any person or entity listed on an Sanctions-related list of designated persons maintains by Office of Foreign Assets Control (OFAC), the Department of State, the United Nations Security Counsil, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any person or entity operating, organized or resident in a Sanctioned Country or (c) any person or entity owned controlled by or such person or persons described in paragraph (a) or (b).
“Sanctioned Country” shall mean a country region or territory which is itself the subject of or target of any sanctions and anti-money laundering laws, regulations, trade embargoes, prohibitions, restrictive measures, decisions, executive orders or notices from regulators implemented, adapted, imposed, administered, enacted and/or enforced by the United States, United Nations, European Union, any other applicable jurisdiction, and including without limitation, Cuba, Iran, Syria, Sudan, North Korea, Lebanon, Russia, Belarus, Crimea region of Ukraine.
2.10. You will maintain records as reasonably necessary to enable You to demonstrate compliance with the terms and conditions of this Agreement for three (3) years after expiration or termination. VAST FEDERAL may audit Your records by an independent and internationally recognized accounting firm retained by VAST FEDERAL, which will have access to Your relevant records, solely for the purposes of confirming compliance with and accuracy of performance under this Agreement, and subject to appropriate confidentiality obligations. VAST FEDERAL shall give You not less than thirty (30) business days’ notice of an audit pursuant to this Section 2.10, and shall not exercise this right more than once per any twelve (12) month period unless an audit reveals any non-compliance. Such audits shall be conducted only during Your normal business hours and shall not unreasonably disrupt Your business operations.
3. LIMITED WARRANTY; DISCLAIMERS
3.1. Unless otherwise required by applicable law, VAST FEDERAL warrants that, the Services and the VAST FEDERAL Software shall, during the Services Term, substantially comply with the VAST FEDERAL Software specifications set forth in the Documentation.
3.2. To the extent permitted by applicable laws, VAST FEDERAL’S sole obligation and Your sole and exclusive warranty and remedy under Section 3.1 above is limited to VAST FEDERAL’S rectifying, at its own expense, any such defect which was notified to VAST FEDERAL at VASTSUPPORT@VASTDATA.COM during the Services Term. Unless otherwise agreed between You and VAST FEDERAL, such rectification of the defect may be performed, by repair, replacement, or correction of the Services or the VAST FEDERAL Software or any part thereof. In the event VAST FEDERAL is not able to rectify the defect as specified above, You are entitled to cancel the Services and VAST FEDERAL will refund any pre-paid Services Fees received by VAST FEDERAL for the remainder of the Services Term. It is agreed and acknowledged that all VAST FEDERAL warranty, liability and obligation to provide the Services shall only remain in effect for the duration of a fully paid-up Services Term.
3.3. VAST FEDERAL’S warranty under Section 3.1 above will be void in the event the VAST FEDERAL Software or any part thereof is:
(i) modified or adjusted in any manner by any party other than VAST FEDERAL or without VAST FEDERAL’S written approval,
(ii) used in conjunction with Your or any third party’s products, which resulted in the defect, other than as specified in the Documentation or approved in writing by VAST FEDERAL,
(iii) abused, mishandled, misused or otherwise used not in accordance with the Documentation and the terms of this Agreement,
(iv) used in crypto-mining activities, unless expressly authorized by VAST FEDERAL, or
(v) was not updated with VAST FEDERAL’S most recent VAST FEDERAL Software release provided to You by VAST FEDERAL within a reasonable period of time.
3.4. TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VAST FEDERAL MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND INCLUDES (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE; AND THAT (II) THE VAST FEDERAL SOFTWARE IS ERROR-FREE OR YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED.
4. INSTALLATION SERVICES
4.1. This Section 4 applies to Your purchase of the Installation Services from VAST FEDERAL or a VAST FEDERAL Partner. VAST FEDERAL (or its authorized subcontractors) will provide the Installation Services in accordance with the terms of this Agreement and the Installation Services Description, which is available at https://www.vastdata.com/resources/solution-briefs/customer-success-installation-service-brief , provided that You fully comply with Your responsibilities set forth in such Installation Services Description.
4.2. VAST FEDERAL warrants that the Installation Services will be performed in a professional and workmanlike manner consistent with generally accepted industry practices by personnel with sufficient skill, knowledge, and training. In the event of VAST FEDERAL’S breach of the foregoing warranty, VAST FEDERAL will re-perform such Installation Services. To the extent permitted by applicable laws, VAST FEDERAL’S sole obligation and Your sole and exclusive warranty and remedy under this Section 4 are limited to VAST FEDERAL re-performing such Installation Services, at its own expense, provided that such breach of warranty was notified to VAST FEDERAL at VASTSUPPORT@VASTDATA.COM within 30 days from the date of completion of the Installation Services by VAST FEDERAL.
5. PROPRIETARY RIGHTS
5.1. You agree and acknowledge that VAST FEDERAL and its licensors are and shall remain the sole and exclusive owner of any and all Intellectual Property rights in or pertaining to the Services, the VAST FEDERAL Software, the Documentation and any part thereof, including any modifications, enhancements, improvements, updates and upgrades, and derivative works, thereof. Other than as explicitly stated hereunder, no license, express or implied, in or to the Intellectual Property Rights of VAST FEDERAL, is granted to You under these terms.
6. CONFIDENTIALITY
6.1. Confidential Information includes, but is not limited to, benchmarks, pricing and roadmaps, and nonpublic information about either party or its products. The Recipient of Confidential Information will use at least commercially reasonable efforts to maintain the confidentiality of the disclosing party’s Confidential Information, agrees to use Confidential Information only for purpose of carrying out this Agreement, and will notify the disclosing party promptly of any unauthorized use or disclosure of Confidential Information. Confidential Information may be disclosed and used by Recipient’s employees, partners, contractors, professional advisors and third parties (“Representatives”) having a need to know and who are under a written obligation of confidentiality and non-use with recipient, no less protective as these terms herein. Recipient shall remain responsible for the act or omissions of its Representatives in connection with any Confidential Information of the disclosing party and shall further cause such Representatives to strictly abide by the terms of those written agreements. Without limiting the foregoing, You may not display or allow any third parties to use or otherwise have any access to the VAST FEDERAL Software or to any information regarding the Services and/or performance thereof including any business, installation, performance, reliability, optimization or integration information, and Your impression of the Services and the VAST Software, all of which are deemed VAST FEDERAL Confidential Information (the “VAST FEDERAL Information”). Confidential Information shall: (a) be treated as highly confidential by Recipient, kept by Recipient in absolute confidence and be afforded by Recipient all reasonable and necessary safeguards (and at least the same level of protection that recipient affords its own confidential information) to protect such information from any disclosure which is not expressly permitted hereunder (b) not be divulged, directly or indirectly, by Recipient to any third party for any purpose whatsoever, and (c) not, without the prior written consent of disclosing party, be used by Recipient for any purpose except as set forth in this section. Nothing in this Agreement shall prevent Recipient from disclosing Confidential Information that is required to be disclosed pursuant to any judicial or administrative proceeding, provided that the Recipient immediately, after receiving notice of such action and to the extent permitted by law, notifies the disclosing party of such action to give the disclosing party the opportunity to seek any other legal remedies to maintain such information in confidence.
7. INDEMNIFICATION
VAST FEDERAL shall indemnify You against any costs and damages actually awarded against You by a competent court in a final judgment or in a court approved settlement (the “Damages”), to the extent resulting from a third party claim alleging that the Services or the VAST FEDERAL Software, or any portion thereof, infringes such third party’s patent, trademark or copyright (“Claim”). Such obligation is subject to You: (i) promptly notifying VAST FEDERAL in writing of any such Claim; (ii) providing VAST FEERAL with sole control of the defense and/or settlement negotiations of the Claim; (iii) furnishing to VAST FEDERAL, on request, all reasonable information and assistance for such defense; and (iv) not admitting fault with respect to the Claim and/or making any payments or concessions with respect to such IP Claim without the prior written consent of VAST FEDERAL. VAST FEDERAL shall (i) keep You duly informed in connection with the litigation and/or settlement negotiations, and (ii) not execute any settlement covenant that imposes any liability or obligations on You without Your prior written consent.
7.1. Should the VAST FEDERAL Software, or any part thereof, become, or in VAST FEDERAL’S opinion be likely to become, the subject of any infringement claim as specified above, then VAST FEDERAL will, at its own option and expense either: (i) procure the right to continue using the VAST FEDERAL Software without infringement; (ii) replace or modify the VAST FEDERAL Software without substantially reducing its functionality, so that it becomes non-infringing; or (iii) if VAST FEDERAL determines that (i) or (ii) cannot be achieved by using reasonable commercial efforts, VAST FEDERAL shall be entitled to terminate the Services and Your right to use the VAST FEDERAL Software immediately upon written notice, in which event VAST FEDERAL will refund any pre-paid Services fee paid by You for the remainder of the Services Term.
7.2. Notwithstanding the foregoing, VAST FEDERAL shall have no obligation or liability for any Claim to the extent resulting from or relating to (a) use of the Services or the VAST FEDERAL Software by You or on Your behalf in violation of any provision of this Agreement, (b) Your failure to install updates or new releases of the VAST FEDERAL Software as instructed or provided by VAST FEDERAL at no cost or to cease using the VAST FEDERAL Software, if requested by VAST FEDERAL, (c) use of a combination of the VAST FEDERAL Software or any part thereof with other products, equipment, or software not provided or approved in writing for such use in the Documentation or by VAST FEDERAL, or (d) modifications of the VAST FEDERAL Software or the Compatible Hardware not approved by VAST FEDERAL.
7.3. This section 7 states Your sole and exclusive remedy and VAST FEDERAL’S entire liability with respect to Claims.
8. LIMITATION OF LIABILITY
8.1. Exclusions. Unless prohibited under applicable law, regardless of the basis of the claim, in no event will VAST FEDERAL have any liability to You for any indirect, consequential, special, punitive exemplary or incidental damages, loss of profits, revenues, anticipated savings or goodwill, loss of data, all even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. VAST FEDERAL shall have no responsibility or liability for any claim to the extent resulting from or relating to any unauthorized use of the Services or the VAST FEDERAL Software by You or on Your behalf, or in breach of the permitted license Purpose(s) or the Storage Services License Rights; Restrictions set out in Section 2 above.
8.2. Liability Cap. Unless prohibited under applicable law, in no event will the VAST FEDERAL aggregate liability to You exceed the amounts paid or payable to VAST FEDERAL in respect of the VAST FEDERAL Software and Services during the twelve (12) months’ period preceding the date the applicable claim arises.
8.3. Exceptions. The limitations set forth in Section 8.1 and 8.2 will not apply to liability for claims arising from (i) death or bodily injury; and (ii) VAST FEDERAL’S willful misconduct, fraud or gross negligence.
9. TERM AND TERMINATION
9.1. Term. This Agreement shall be in effect for the duration of the Services Term if and as extended from time to time in accordance with the terms of this Agreement, an Order or of the VAST FEDERAL Partner Agreement, as applicable. The Services Term shall commence on the day the VAST FEDERAL Software license key is delivered to You and be valid for such number of months set out in the Order, unless terminated in accordance with this Section 9 (the “Initial Term”).
9.2. Renewal. Unless otherwise set forth in a VAST FEDERAL Partner Agreement or an Order (as applicable), Services Term purchased under such VAST FEDERAL Partner Agreement or an Order, will automatically renew for the same duration as the Initial Term (each a “Renewal Term”) unless either party notifies the other party of its intent not to renew at least 45 days before the then next Renewal Term.
9.3. Termination. VAST FEDERAL may terminate this Agreement together with all rights and licenses granted hereunder with immediate effect on written notice in the event You breach Section 2 of this Agreement. Either party may terminate this Agreement or an Order for material breach if such material breach is not remedied within 30 days of written notice of such material breach. Any failure to remit payments in relation to the Services and the VAST FEDERAL Software when due, whether payable to VAST FEDERAL or a VAST FEDERAL Partner, constitutes a material breach of this Agreement. This Agreement and all rights and licenses granted hereunder shall automatically terminate once all Orders have expired or have been terminated and all Services Term(s) are no longer in effect.
9.4. Effect of Termination. Upon termination of this Agreement or expiry of the Services Term, the right to use the Services shall expire. Upon the expiry of the Services Term, You will promptly return or destroy all VAST FEDERAL’S Confidential Information. Upon VAST FEDERAL’S request, You shall certify in writing Your compliance with this Section 8.4. Sections 1, 2.2, 2.3, 2.4, 2.7, 3, 5, 6, 8, 9 and 10 will survive any termination or expiration of this Agreement.
10. FEDERAL CONTRACTS
The VAST FEDERAL Software and Services and related Documentation are “commercially available off the shelf” items as defined in FAR 2.101, and their use is subject to the policies, as applicable, set forth in FAR part 12, specifically but not limited to FAR subpart 12.211 and 12.212, as well as DFARS subpart 212.2, specifically but not limited to 212.211 and 212.212. Disputes will be subject to resolution pursuant to the Contract Disputes Act of 1978. Nothing contained in this Section is meant to derogate the rights of the U.S. Department of Justice as identified in 28 U.S.C. § 516. All other terms remain in effect as written.
11. GENERAL
11.1. Severability. In the event any provision or part of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.
11.2. Waiver. No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
11.3. Entire Terms. This Agreement supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof between You and VAST FEDERAL. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
11.4. Force Majeure. Neither party will be liable to the other for any alleged loss or damages resulting from acts of God, acts of civil or military authority, governmental riots, fire, floods, earthquakes, epidemics, quarantine, energy crises, strikes, labor trouble, terrorism, war, riots, accidents, shortages, delays in transportation or any other causes beyond the reasonable control of a party (Collectively, “Force Majeure”). Notwithstanding any of the foregoing, Force Majeure is not applicable to Your failure of payment.
11.5. Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of New York as if performed wholly within New York and without giving effect to the principles of conflicts of laws VAST FEDERAL shall reserve the rights to control all aspects of any lawsuits or claim that arises from Your access to the Services or use of the VAST FEDERAL Software or Documentation.