It is understood and agreed to that the parties in this Agreement would each like to provide the other with certain information that may be considered confidential. To ensure the protection of such information and in consideration of the agreement to exchange said information, the parties agree as follows:

1. The confidential information to be disclosed under this Agreement (“Confidential Information”) can be described as and includes:

Technical, software and business information relating to proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure. In addition to the above, Confidential Information shall also include, and the parties shall have a duty to protect, other confidential and/or sensitive information which is (a) disclosed as such in writing and marked as confidential (or with other similar designation) at the time of disclosure; and/or (b) disclosed by in any other manner and identified as confidential at the time of disclosure and is also summarized and designated as confidential in a written memorandum delivered within thirty (30) days of the disclosure.

2. The parties shall use the Confidential Information only for the purpose of evaluating potential business, employment and/or investment relationships.

3. The parties shall limit disclosure of Confidential Information within its own organization to its directors, officers, partners, members and/or employees having a need to know and shall not disclose Confidential Information to any third party (whether an individual, corporation, or other entity) without prior written consent. The parties shall satisfy its obligations under this paragraph if it takes affirmative measures to ensure compliance with these confidentiality obligations by its employees, agents, consultants and others who are permitted access to or use of the Confidential Information.

4. This Agreement imposes no obligation upon the parties with respect to any Confidential Information (a) that was possessed before receipt; (b) is or becomes a matter of public knowledge through no fault of receiving party; (c) is rightfully received from a third party not owing a duty of confidentiality; (d) is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing party; or (e) is independently developed.

5. The parties warrant that they have the right to make the disclosures under this Agreement.

6. Recipient may currently or in the future be developing information internally, or may receive information from other parties that may be similar to Discloser’s Confidential Information. Recipient shall not develop or have developed products or services, that compete with the products or systems contemplated by Discloser’s Confidential Information.

7. Neither party shall at any time compete with the business interests of the other party. In addition, neither party shall engage in the solicitation and/or employment of the other parties’ employees without exception.

8. This Agreement shall not be construed as creating, conveying, transferring, granting or conferring upon either party any rights, license or authority in or to the information exchanged, except the limited right to use Confidential Information specified in paragraph 2. Furthermore and specifically, no license or conveyance of any intellectual property rights is granted or implied by this Agreement.

9. Neither party has an obligation under this Agreement to purchase any service, goods, or intangibles from the other party. Furthermore, both parties acknowledge and agree that the exchange of information under this Agreement shall not commit or bind either party to any present or future contractual relationship (except as specifically stated herein), nor shall the exchange of information be construed as an inducement to act or not to act in any given manner.

10. Neither party shall be liable to the other in any manner whatsoever for any decisions, obligations, costs or expenses incurred, changes in business practices, plans, organization, products, services, or otherwise, based on either party’s decision to use or rely on any information exchanged under this Agreement.

11. If there is a breach or threatened breach of any provision of this Agreement, it is agreed and understood that the non-breaching party shall have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief; provided however, no specification in this Agreement of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of this Agreement.

12. This Agreement states the entire agreement between the parties concerning the disclosure of Confidential Information and supersedes any prior agreements, understandings, or representations with respect thereto. Any addition or modification to this Agreement must be made in writing and signed by authorized representatives of both parties. This Agreement is made under and shall be construed according to the laws of the State of New York, U.S.A. In the event that this agreement, is breached, any and all disputes must be settled in a court of competent jurisdiction in the State of New York, U.S.A.

13. If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Agreement as a whole.

WHEREFORE, the parties acknowledge that they have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein.

This article includes the ProActive Data Storage and Monitoring EULA for all business and enterprise products: Vault, Vault Enterprise, Cloud and Pulse Monitoring.

PROACTIVE DATA STORAGE AND MONITORING

Effective Date:  September 1, 2017

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IMPORTANT:

PLEASE READ THIS END USER LICENSE AND SUBSCRIPTION AGREEMENT CAREFULLY.  YOU WILL HAVE ACCEPTED THIS END USER LICENSE AND SUBSCRIPTION AGREEMENT IF YOU ARE A SUBSCRIBED TO OUR VIDEO VAULT SERVICE.

This Agreement is a legal agreement between you, the customer, and ProActive Data Storage And Monitoring Software, Inc., a New York corporation ("ProActive Data Storage And Monitoring") regarding the license, installation and subscription to use ProActive Data Storage and Monitoring's Vault, Onsite and Cloud software and Pulse Monitoring software and any hardware purchased by you from ProActive Data Storage and Monitoring (hereinafter individually and collectively the "ProActive Data Storage and Monitoring Products and Services").  In this Agreement, "you" and "your" refer collectively to you, the business customer, corporation partnership, company or other business entity, and your employees and agents, and "we", "us" and "our" refer collectively to ProActive Data Storage and Monitoring. 

OUR PRODUCTS AND SERVICES SUPPORT BACKUP STORAGE AND SHARED FOLDER SYNCHRONIZATION AND DATA STORAGE TO MULTIPLE LOCATIONS UTILIZING THE PUBLIC CLOUD. DESCRIBED BELOW SUBJECT TO THE TERMS AND CONDITIONS OF YOUR LICENSE AND SUBSCRIPTION. WE STRONGLY ADVISE AND ENCOURAGE YOU TO LEVERAGE THE FULL CAPABILITIES OF THE PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES AND BACKUP YOUR DATA TO AT LEAST TWO DESTINATIONS AND TO UTILIZE BOTH THE ONSITE AND CLOUD, IF APPLICABLE, FOR ADDITIONAL REDUNDANCY AND PROTECTION OF YOUR END USERS DATA.  OUR SERVICES ARE DESIGNED AND INTENDED TO BACKUP VIDEO DATA AND NOTICFY YOU IN THE CASE OF SYSTEM TROUBLE. YOU ARE RESPONSIBLE FOR MAINTAINING THE PRIMARY COPY OF YOUR DATA AND YOU SHOULD NOT RELY ON THE PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES FOR PRIMARY DATA STORAGE.

WE ARE WILLING TO ALLOW THE LICENSE AND YOUR SUBSCRIPTION TO THE PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.  BY ACCEPTING THIS AGREEMENT YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN PROACTIVE DATA STORAGE AND MONITORING IS UNWILLING TO ALLOW THE LICENSE AND SUBSCRIPTION TO THE PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES AND YOU MUST NOT DOWNLOAD, INSTALL, ACTIVATE, OR USE THE PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES. 

THE AUTHORIZED AGENT ENTERING INTO THIS AGREEMENT ON YOUR BEHALF HEREBY REPRESENTS AND WARRANTS TO US THAT HE OR SHE IS (A) AUTHORIZED TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF AND BIND YOU TO THE TERMS AND CONDITIONS CONTAINED HEREIN; AND (B) IS OVER THE AGE OF 18 YEARS OLD.  ANY LICENSE OR SUBSCRIPTION TO ANY OF OUR PRODUCTS AND SERVICES WITHOUT AGREEING TO THE TERMS OF THIS AGREEMENT IS STRICTLY PROHIBITED.

We make no representations that our Products and Services are appropriate for use in other locations outside of the United States.  If you use our Products and Services in or from locations outside the United States you are responsible for compliance with all applicable laws and regulations. 

We may make changes to this Agreement our sole discretion. Changes will be communicated to you by us posting the new version of the Agreement on our website at www.proactive-cctv.com or as otherwise determined by us at our sole discretion and your acceptance of and/or continued use of any of our Products and Services after such notification of changes to this Agreement will constitute your acceptance of such changes. You may also be asked to re-acknowledge and reaccept this Agreement following any material changes.

1. DESCRIPTION OF OUR PRODUCTS AND SERVICES; DEFINITIONS.

 

Throughout this Agreement, the following descriptions and definitions shall apply.  More detailed information regarding our Products and Services can be found at www.proactive-cctv.com

PRODUCTS AND SERVICES

a. “VAULT” is software designed to compress and stream video data received vis the RSTP output of the CCTV recording devise on site to a separate onsite server and/or to the Google Cloud. This backup service which is licensed and provided on an end user basis, with each end user allowed to utilize our software to retrieve video data at their digression. Our backup software license is granted per recording device (up to 32 cameras).

b. “PULSE Monitoring” is additional software, for monitoring the performance of a CCTV system over the internet, which is licensed and provided on an end user basis, with each end user allowed to utilize this software per recording device (up to 32 cameras).

ADDITIONAL DEFINITIONS

a. “Our Software" refers to each of, and collectively to, Vault and Pulse Monitoring.

b. "Device" means CCTV video recorder/system including cameras.

c. "Documentation" as used in this Agreement means written information (whether contained in user or technical manuals, training materials and specifications or otherwise) specifically pertaining to our Products and Services and made available by us with our Data Storage and Monitoring Products and Services in any manner.

d. "Modifications" refers to additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to our Software or to remove or terminate the functionality of any of our Software in accordance with the termination provisions of this Agreement.

2. GRANT OF LICENSE.

 

Unless otherwise noted in this Agreement, and to the fullest extent allowed under any applicable laws, all terms and conditions of this Agreement apply to the license and use of any and all of our Products and Services.

a. NON-EVALUATION GRANT OF LICENSE.  Conditioned upon compliance with the terms and conditions of this Agreement, we grants to you a nonexclusive and nontransferable license to use during the term of your subscription of those Products and Services that you have validly licensed and subscribed to use, along with their related Documentation. 

b. TITLE AND LIMITATIONS.  This is a license and subscription to use our Products and Services during the term of your subscription, not a transfer of title of our Products and Services.  We retains ownership of all copies of our Products and Services. You are granted no implied licenses to any other intellectual property rights other than as specifically granted herein.  You acknowledge that the our Products and Services are contained trade secrets of ProActive Data Storage And Monitoring, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to: (i) transfer, assign or sublicense your license or subscription rights to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, our Products and Services or to create derivative works based upon our Products and Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce our Products and Services to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit our Products and Services to be used for commercial use beyond its general use by you in the operation of your business or to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without our expressed written authorization; (v) disclose, provide, or otherwise make available trade secrets contained within our Products and Services in any form, to any third party without our prior written consent; or (vi) use our Products and Services to develop any software application or similar products and services.  You acknowledge and agree that we reserves the right to remotely prevent access to and/or use of the our Products and Services in the event that (i) we become aware, from you or otherwise, of unauthorized access or use of our Products and Services by any third party using any user name, password, or other login credentials of you, or (ii) this Agreement is terminated.  You may provide feedback to us with respect to our Products and Services. Notwithstanding any provision of the Agreement to the contrary, we may use such feedback for any purpose without obligation of any kind. To the extent a license is required to make use of such feedback, you hereby grant to us an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use such feedback in connection with our business, including enhancement of our Products and Services.

c. SOFTWARE, UPGRADES, AND ADDITIONAL COPIES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR MODIFICATIONS TO OUR SOFTWARE OR DOCUMENTATION UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR MODIFICATION, ALREADY HOLD A VALID LICENSE AND SUBSCRIPTION TO THE ORIGINAL SOFTWARE AND HAVE PAID THE APPLICABLE FEE FOR THE MODIFICATION OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.

 

3. ACCESS TO OUR PRODUCTS AND SERVICES.

 

In order to use our Products and Services, you must provide all Devices and equipment necessary to use our Products and Services that are not a part of the our Products and Services, including, but not limited to, a Device that is in working order running an operating CCTV recording system compatible with our Products and Services and that is suitable for use in connection with our Products and Services. You are responsible for ensuring that you’re Device, equipment and/or software do not disturb or interfere with our hardware and software. If any Modification to our Products and Services requires changes in your Device, equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance our Products and Services, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.

 

4. DATA BACKUP, PULSE AND SECURITY.

 

a. DATA BACKUP.  You decide where your End Users Data will be backed up and stored. This data is stored either on the server we provide Onsite and or Offsite in the Google Cloud using the same server as a bridge to the Cloud.

(i) Onsite Backup.  You remain in control of your end users data backup and may use our CMS software to manage your accounts. You are solely responsible for the End Users Data stored in the onsite server, including without limitation, any loss of your End User Data due to performance, compatibility or reliability issues associated with the CCTV system in place.

(ii) Offsite Backup.  End Users Data stored in the Google Cloud is encrypted prior to being transmitted to the Google Cloud. The Cloud is designed to work with Devices that are in-use and connected to the Internet at all times. Whether using Onsite or Offsite backup to store data our backup server must be connect to the internet.

(iii) Pulse Monitoring. Pulse alerts require your CCTV system and backup server devices to be connected to the Internet.  

b. DATA SECURITY.  All TCP/UDP data transmission gets encrypted using AES-256 bit encryption. Data transmission includes client-side, server-side and CMS communication of user credentials and device information. PROACTIVE DATA STORAGE AND MONITORING generate all encryption keys, and at any time without announcement or notice, may decide to generate new encryption keys. Google Cloud file transmission gets encrypted during transit and at rest. By default, remote playback from the CMS software directly to the Proactive Server on the client’s network uses an unencrypted file transmission. The transmission can be secured using an SSL certificate, provided by end-user. PROACTIVE DATA STORAGE AND MONITORING is not responsible for providing this certificate. PROACTIVE DATA STORAGE AND MONITORING is not responsible for managing the end-users network and its security configuration.

 

c. ACCOUNT DETAILS AND PASSWORD.  You agree to keep all account and password details private and to not share them with anyone else in order to prevent unauthorized access to your account, your password, and/or your End User Data.  We are not liable for any loss or damage arising from any access to, sharing or use of your account, your password or your End User Data.

6.  PRIVACY AND CUSTOMER INFORMATION.

a. METHOD OF PAYMENT INFORMATION.  If you subscribed to our Products and Services, we may collect and store your method of payment for the Products and Services you have purchased.

b. ACCOUNT CREDENTIALS.  Your e-mail address in combination with your password, allows us to verify your identity. WE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY LOST, STOLEN, OR DELETED USER DATA, INCLUDING ANY DATA DELETED REMOTELY DUE TO THE COMPROMISE OF YOUR PASSWORD, YOUR ACCOUNT CREDENTIALS OR ACCESS TO YOUR E-MAIL ACCOUNT.

c. INFORMATION COLLECTED VIA THE INTERNET.  We may automatically use the Internet to search for updates, such as, but not limited to, bug fixes and security updates, for our Products and Services.  Such updates may install automatically.  We may verify the status of any subscription and right to use our Products and Services.  Devices with our Software may also be tracked by us (such as via Internet Protocol address) to locate where on the Internet that computer is located.

d. PROACTIVE DATA STORAGE AND MONITORING PRODUCTS' LICENSE KEY.  Our Services may require activation via a license key.  Our Services requiring activation by a license key will require an Internet connect to complete activation. Activation via a license key will result in the computer installed with our Products and Services to transmit the license key to us via the Internet for activation of our Products and Services.

 

8. UNINSTALLING PROACTIVE DATA STORAGE AND MONITORING SOFTWARE. 

 

UNINSTALLING THE PROACTIVE DATA STORAGE AND MONITORING SOFTWARE WILL CEASE ALL FUNCTIONALITY OF THE PROACTIVE DATA STORAGE AND MONITORING SOFTWARE.  UNINSTALLING PROACTIVE DATA STORAGE AND MONITORING SOFTWARE WILL RESULT IN YOU NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED TO THE CLOUD USING THE PROACTIVE DATA STORAGE AND MONITORING SOFTWARE AND LIMITED ACCESS TO ANY USER DATA STORED IN THE CLOUD.  ADDITIONALLY, UNINSTALLING VAULT WILL RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP USER DATA FROM THAT DEVICE AND UNINSTALLING PULSE MONITORING WILL RESULT IN ALL DATA SHARING CEASING TO FUNCTION. 

 

9.  PROPRIETARY NOTICES. 

 

You agree to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the ProActive Data Storage And Monitoring Software and our Products and Services in the same form and manner that such copyright and other proprietary notices include our Software and the ProActive Data Storage And Monitoring Products and Services. Except as expressly authorized in this Agreement, you shall not make any copies or duplicates of any of our Software without our prior written permission.

 

10. TERMINATION. 

 

This Agreement shall be effective as of your acceptance of this Agreement or your use of our Products and Services, whichever is sooner, and shall continue in effect until terminated as set forth in this Agreement.  Either party may, at its election and in its sole discretion, terminate this Agreement and any subscription to our Products and Services at will, at any time, but except as explicitly set forth herein, we will not be liable for refunding any prepaid Fees for any unused portion of a subscription term.  We specifically reserves the right to terminate this Agreement and your use of our products immediately, without notice from us, if you fail to comply with any provision of this Agreement, you use any of our Products and Services in a way not intended by us, or you abuse your use of our Products and Services.  We are further entitled to obtain injunctive relief if your use of our Products and Services is in violation of any restrictions set forth in this Agreement, including without limitation any license restrictions. Upon termination, you shall destroy all copies of our Software and Documentation in your possession or control. ACCORDING TO THIS SECTION OR OTHER SECTIONS OF THIS AGREEMENT, WE MAY TERMINATE YOUR ABILITY TO CONTINUE TO USE OUR PRODUCTS AND SERVICES.  THE TERMINATION OF YOUR ABILITY TO CONTINUE TO USE OUR PRODUCTS AND SERVICES WILL CAUSE THOSE OUR PRODUCTS AND SERVICES TO CEASE FUNCTIONING AND RESULT IN YOU NOT BEING ABLE TO ACCESS ANY END USER DATA THAT WAS STORED.  The termination of this Agreement for any reason shall not affect: a) the obligations of the parties to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or b) any other obligation or liability which either party has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination. Upon termination of the Agreement, or at your request at any time during the term of the Agreement, we will (i) make available to you or (ii) to the extent commercially practicable, destroy and certify the same (at your election) all End User Data stored. You shall have fifteen (15) business days after termination of the Agreement to request data in written; thereafter, we shall, to the extent commercially practicable, destroy and, at your request, certify the same. You may request data be copied during such fifteen-day period, the parties shall work together in good faith to copy your data for a fee for both media and time at the then-current applicable hourly rate for such services.

TERMINATION OPTIONS:

In the event you decide to terminate any clients from your account. You will be given two termination options delivered by email only:

a. Complete Account Removal – the account will be permanently deleted, and all your data will be removed. Unrecoverable.

b. External Media Transfer – Your data from storage can be transferred to external media and shipped to a specified address provided by you. You will be responsible for the cost of any external media. Cost may vary depending on the media that is required to store your data on. After successful delivery, your account will be permanently deleted. Unrecoverable.

If you fail to reply within 72 hours of requesting to terminate to an account, that account will be permanently deleted. If we do not have a proper email address on file from you, we will automatically delete your account. Any failure of email transmission due to an error on your part, and we will automatically delete your account.

 

11. ALLOCATION OF RISK.
 

You acknowledge and agree that we have set prices and entered into this Agreement and your subscription to the our Products and Services in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Frame
rates may vary, and we cannot guarantee a constant rate based on limitations of hardware. Continuous recording is outside our operating procedure, and we cannot guarantee the software will operate as intended at this preference, and may be throttled to motion.  Resolutions above 1080p may be automatically defaulted to 1080p resolution if hardware cannot keep up with the stream.

 

12. LIMITED WARRANTY.  

We warrant that, for twenty-four (24) months from the date of installation of the backup server will be free of defect and will operate as intended. Most repair are diagnosed remotely, but may require an onsite visit at the dealer expense. We will send the dealer replacement parts as required during the warranty period and the dealer shall preform the service required (with our instructions) at your expense for labor. Our Products and Services in the form delivered by us will substantially conform to and perform substantially in accordance with our published Documentation, to the extent such exists, with respect thereto when installed and operated in accordance with our specifications, and we will endeavor to correct any failure of our Products and Services to so conform or perform of which we receive written notice from you within said thirty (30) day period. WE DOS NOT WARRANT THAT OUR PRODUCTS AND SERVICES OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT THE
OPERATION OUR PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES IS WITH YOU.

 

13.  LIMITATION OF REMEDIES.  

YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THAT (A) WE WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF OUR PRODUCTS AND SERVICES TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH OUR DOCUMENTATION AND/OR SPECIFICATIONS, TO THE EXTENT SUCH SPECIFICATIONS EXIST, DURING THE WARRANTY PERIOD SET FORTH IN SECTION 13 OF THIS AGREEMENT OR (B) IN THE EVENT THAT WE SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY SUCH FAILURE OR NON-CONFORMITY OF OUR PRODUCTS AND SERVICES IN ACCORDANCE WITH THE WARRANTY SET FORTH IN SECTION 13, YOU MAY TERMINATE THIS AGREEMENT AS TO THE AFFECTED PRODUCTS AND SERVICES.

 

14. LIMITATION OF OUR LIABILITY. 

IN NO EVENT WILL PROACTIVE DATA STORAGE AND MONITORING BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PROACTIVE DATA STORAGE AND MONITORING PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF OURS UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF OUR PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US FOR YOUR SUBSCRIPTION OF OUR PRODUCTS AND SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES. 

 

15. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.
 

Subject to the limitations of Section 15, we will defend you and hold you harmless against liability upon any claim by any third party that the we furnish, infringe or violate any copyright, trademark or trade secret rights of such third party or any patent rights of such third party under a United States patent issued as of the effective date of this Agreement, provided that: a) you notify us promptly in writing of any notice of any such claim; b) you cooperate with us in all reasonable respects in connection with the investigation and defense of any such claim; c) we shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should our Products and Services become, or in our opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit us at our option and expense, either to: (1) procure for you the right to continue using the affected Products and Services; (2) replace or modify the same so that it becomes non-infringing; or (3) terminate this Agreement with respect to our Products and Services and refund to you any prepaid and unused amount of the subscription fees paid to us for our products and services after you notified us in writing of any such claims. Notwithstanding anything herein to the contrary, however, we shall have no obligation or liability under any provision of this Section if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon use of our Products and Services in a manner other than that for which it was furnished by us, upon any Products and Services which has been modified by or for you in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by us.

 

16. INDEMNITY BY YOU.  

You will, to the fullest extent permitted by law, indemnify us and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “ProActive Data Storage And Monitoring Indemnified Parties”) against and hold the our Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of you which gives rise to claims against our Indemnified Parties by third parties.

17.  U.S. GOVERNMENTAL END USER PURCHASES.  

The ProActive Data Storage And Monitoring Products and related Documentation are “Commercial Terms,” as that term has been defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms have been used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  The terms and conditions of this Agreement shall apply to the government’s use and disclosure of our Products and Services, and shall supersede any conflicting contractual terms and conditions.  If this Agreement or the license granted hereunder fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return our Products and Services, unused, to us. Unpublished-rights are reserved under the copyright laws of the United States. 

 

18. YOUR OBLIGATIONS.  

You represent and warrant that (a) you are the owner or an authorized user of the Device on which our Products are installed and any end use data used in conjunction with our Products and Services; (b) you shall use the our Products and Services only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; and (c) you shall use the our Products and Services only for your business backup needs and, using Pulse monitoring synchronization and sharing needs, and for no other commercial or third party use. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify our Products and Services except to uninstall the same as provided herein.

 

19. GENERAL PROVISIONS. 

a. ENFORCEMENT/CHOICE OF LAW/CHOICE OF FORUM.  Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect.  The laws of the State of New York, excluding its conflicts of law rules, govern this Agreement and your use of our Products and Services.  Your use our Products and Services may also be subject to other local, state, national, or international laws.  If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision shall be deemed amended to approximate as closely as possible the effect of the original terms.  All other provisions of this Agreement shall continue in full force and effect.  Any action between the parties will be venued in a state or federal court situated within the state of New York, and you irrevocably submit yourself to the personal jurisdiction of such courts for such purpose. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 

b. ENTIRE AGREEMENT/NO WAIVER.  This Agreement together with the Pricing Policy and the Privacy Policy, both of which are incorporated herein, sets forth the entire agreement and understanding between us and you regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter.  You acknowledge that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained in this Agreement. The failure us to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement.  The waiver of any default by us will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

c. CORRECTION OF ERRORS AND INACCURACIES.  This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current.  We reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice.  We do not, however, guarantee that any errors, inaccuracies or omissions will be corrected.

d. HEADINGS.  The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. 

e. NO JOINT VENTURE.  This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.

f. ASSIGNMENT AND RESALE.  We may assign its rights and obligations under this Agreement but your rights under this Agreement are not assignable or transferable. You agree not to resell our Products and Services or any portion thereof. This Agreement will be binding upon and insure to the benefit of the parties and their respective successors and permitted assigns.

g.  NO THIRD PARTY BENEFICIARIES. No third-party beneficiaries are intended or shall be construed as created by virtue of this Agreement.

h. EXPORT COMPLIANCE. You may not use or otherwise export or re-export our Products and Services except as authorized by United States law and the laws of the jurisdiction in which our Products and Services were obtained.  In particular, but without limitation, our Products and Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using our Products, You represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.