The parties to this End User License Agreement (the “Agreement”) are (i) Zerto, Inc., if the license was purchased from Zerto, Inc. or its authorized reseller, Zerto Ltd., if the license was purchased from Zerto Ltd. or its authorized reseller, Zerto UK Limited, if the license was purchased from Zerto UK Limited, or its authorized reseller, Zerto AUS Pty Ltd., if the license was purchased from Zerto AUS Pty Ltd., or its authorized reseller, Zerto Singapore Pte. Ltd., if the license was purchased from Zerto Singapore Pte. Ltd., or its authorized reseller, or Zerto Germany GmbH, if the license was purchased from Zerto Germany GmbH, or its authorized reseller (as applicable, “Zerto”); and (ii) the individual installing and/or using the Software (as such term is defined below) and any legal entity on whose behalf such individual is acting (“You” or “you”).
This Agreement governs Your use of the object code copy of the Zerto software program, Zerto’s mobile application (Zerto Mobile, to the extent available), Zerto Analytics (SaaS) application (to the extent available), together with any associated media, related third party software (if applicable), and all accompanying manuals and other documentation, and together with all enhancements, upgrades, and extensions thereto (the “Software”).
PLEASE NOTE: BY SELECTING THE CHECK BOX BELOW, YOU INDICATE YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY AND COMPLY WITH ITS TERMS. NOTHING IN THE ABOVE CHECK BOX REQUIREMENT DEROGATES FROM ANY ACKNOWLEDGEMENT, ACCEPTANCE OR UNDERTAKING PREVIOUSLY MADE BY YOU UNDER ANY ZERTO QUOTE ACCEPTED BY YOU.
1. License to Use Software
1.1 Subject to proper payment to Zerto and Your compliance with the terms and conditions of this Agreement and other agreements with Zerto by which you are bound, Zerto hereby grants You a non-exclusive, non-sublicensable, non-transferable, perpetual license (unless terminated in accordance with the terms herein), including under Zerto Patent Rights (as defined below), to install and use the Software, solely for Your internal purposes, and solely on such number of virtual machines (VM) as agreed upon in writing between You and Zerto or between Zerto and Your relevant Zerto authorized reseller, provided that each such virtual machine runs a validly licensed copy of the operating system for which the Software was designed. You agree that, except for the limited, specific license rights granted in this section 2, You receive no license rights to the Software.
1.2 Scope of Use for VM Migration. The license to install the Software is provided on a per-VM basis so that each license may be installed and used to protect only one VM. Accordingly, for migration purposes You are required to purchase a license per each VM being migrated and You may not re-use one license to migrate more than one VM. Such re-use of licenses shall be deemed a material breach of the license scope hereunder and You will be obligated to immediately pay the difference between the license purchased and the license used.
1.3 The license granted for the use of the Zerto Mobile and Zerto Analytics applications shall be subject to the payment of applicable fees and Your purchase of Zerto’s Support Services (as defined in Annex A hereto) and for the duration of the term of such support services purchased. Zerto reserves the right to discontinue and terminate the Zerto Mobile and Zerto Analytics applications at any time.
1.4 Unless otherwise authorized in writing by Zerto, You undertake not to (and not to allow third parties to) (1) sublicense, lease, rent, loan, or otherwise transfer the Software to any third party, (2) decompile, disassemble, decrypt, extract or otherwise reverse engineer or attempt to reconstruct or discover any source code of, or any underlying ideas in, the Software (“Reverse Engineering”), (3) modify, adapt, or prepare derivative works from the Software, (4) allow others to use the Software and use the Software for the benefit of third parties, (5) develop any other product containing any of the concepts and ideas contained in the Software, (6) remove, obscure, or alter Zerto’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software, and (7) make unauthorized copies of the Software (except as necessary for backup purposes). If, notwithstanding the prohibition set forth in subsection (2) above, applicable law permits Reverse Engineering, You will, before commencing or permitting any Reverse Engineering (A) inform Zerto of the planned Reverse Engineering, (B) conduct or allow such Reverse Engineering only to achieve interoperability between the Software and other computer programs, (C) request from Zerto the information necessary to achieve such interoperability, (D) provide Zerto ample opportunity to supply the information necessary to achieve interoperability. You acknowledge that Zerto will own all right, title, and interest in and to any results of Reverse Engineering as permitted under this Section 1.2.
1.5 In the event that You or Your relevant Zerto’s authorized reseller have purchased certain support services in connection with the Software (and only in such event), the terms of Zerto’s Support and Service Agreement attached hereto as Annex A (the “SSA”) shall apply to such services and shall constitute an integral part of this Agreement. Other than as set forth in the SSA (to the extent it applies), or, if applicable, any Zerto quote accepted by You, Zerto has no obligation to provide support, maintenance, upgrades, modifications, or new releases of the Software.
1.6 Subject to proper payment to Zerto and Your compliance with the terms and conditions of this Agreement, You may also purchase, directly or through Your relevant Zerto’s authorized reseller, certain Zerto professional services which may include; advanced training, installation, health-checks, scripting, integration and migration, and/or any other customized services with respect to the Software, as may be offered by Zerto from time to time (the “Professional Services”). You hereby represent and warrant that to the extent You provide to Zerto any of Your controlled materials or third party materials in connection with Zerto’s performance of the Professional Services, You would have obtained all necessary permissions, licenses, and consents and will have the authority to provide such material to Zerto. The specifications, deliverables and other terms of the Professional Services shall be set forth in a Zerto quote accepted by You or Your relevant Zerto’s authorized reseller.
2. Intellectual Property
2.1 You acknowledge that Zerto or other third parties own all right, title and interest, including all Zerto Patent Rights and other intellectual property rights, in and to the Software, portions thereof, or software or content provided through or in conjunction with the Software, including without limitation any comments or ideas You provide to Zerto on how to improve the Software. Except for the license granted in accordance with Section 1 of this Agreement, all rights in and to the Software are reserved, and no licenses, implied or otherwise, are granted by Zerto, You are not authorized to use Zerto’s trademarks, service marks, or trade dress, and You agree not to display or use them in any manner other than as they are displayed in the Software.
3. License to Free Programs
The Zerto Software may include certain software made available under open source licenses (the “Open Source Software”). A list of such Open Source Software in the Zerto software is available at http://publicdocs.zerto.com/open_source.zip. To the extent required by the applicable open source licenses, the terms and conditions of such licenses shall apply to the Open Source Software in lieu of the terms and conditions of this Agreement. Notwithstanding anything to the contrary in this Agreement, Zerto makes no warranties in respect of Open Source Software in excess of the warranties set forth in the applicable open source license itself, and accepts no liability in respect of Open Source Software in excess of the limitation of liability set forth in the applicable open source license. If any license requires Zerto to provide source code, Zerto shall make such source code available to You upon Your written request to email@example.com or via the Self-Service Portal at www.zerto.com/support according to the terms of the applicable open source license.
4. Acceptable Use and Conduct
You shall use the Software in compliance with all applicable laws, ordinances, rules and regulations, shall not violate or attempt to violate Zerto’s system or network security, and shall not misuse the Software in any way. You shall be responsible for Your conduct while using the Software.
The consideration for the license granted hereunder shall be as set forth in the Zerto quote accepted by You or by Your Zerto’s authorized reseller. Unless explicitly provided otherwise in this Agreement or in such quote, such consideration is non-refundable.
This Agreement will enter into effect on the date on which this Agreement is accepted by You (the “Effective Date”), and shall remain in effect for an indefinite period of time, unless provided otherwise in Zerto’s quote accepted by you or Your authorized Zerto reseller. Notwithstanding the above, each party shall be entitled to terminate this Agreement with immediate effect by providing the other party with a written notice in any of the following events: (i) the other party breaches or is in default of any obligation hereunder, including the failure to make any payment when due, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of written notice from the non-defaulting Party or within such additional cure period as the non-defaulting party may authorize in writing; (ii) the filing by or against the other party of any action under any federal, state or other applicable bankruptcy or insolvency law, which is not dismissed or otherwise favorably resolved within thirty (30) days of such event.
Any Confidential Information (as defined below) received by either party hereto shall be retained in confidence and shall be used, disclosed, and copied solely for the purposes of and in accordance with this Agreement. A receiving party shall use the same degree of care as it uses to protect its own Confidential Information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure, or publication of the Confidential Information of the other party. “Confidential Information” means any business, financial, marketing, technical, scientific, or other information disclosed by either party to the other party. Without limiting the foregoing, You agree that the Software shall be deemed Zerto’s Confidential Information. “Confidential Information” shall not include information that: (a) was lawfully known or received by a receiving party prior to disclosure, as evidenced by its business records; (b) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (c) is independently developed by the receiving party without use of or reference to the Confidential Information of the other party, as evidenced by its written records.
8. Limited Warranty; Disclaimer of Warranties
8.1 Zerto warrants that (i) it is the owner of, or has the right to grant the licenses to, the Software; and (ii) for a period of thirty (30) days from its delivery date, the Software will substantially conform in material respects to the Zerto Virtual Manager Administration Guide made available to You during the installation process. This limited warranty is not transferable. This limited warranty does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Software by You, or Your agents; any abuse, misuse or negligent acts of You; modification by You of any interfaces or any software or hardware interfacing with the Software; or any failure by You to follow Zerto’s installation, operation or maintenance instructions.
8.2 EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, THE SOFTWARE IS PROVIDED “AS IS.” ZERTO AND ZERTO’S LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ZERTO AND ITS LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. ZERTO AND ITS LICENSORS, AFFILIATES, EMPLOYEES AND CONSULTANTS DO NOT WARRANT THAT THE SOFTWARE WILL FUNCTION AS DESCRIBED; WILL BE UNINTERRUPTED; WILL BE ERROR FREE; WILL BE FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE BY USING THE SOFTWARE WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM ZERTO OR FROM ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT YOU USE THE SOFTWARE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE, INCLUDING WITHOUT LIMITATION, AMAZON WEB SERVICES OR MICROSOFT AZURE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SOFTWARE AND SUCH THIRD PARTY SOFTWARE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF ZERTO’S LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS.
9. Limitation of Liability
NEITHER ZERTO NOR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS SHALL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. IN ANY CASE AND WITHOUT DEROGATING FROM THE ABOVE, THE AGGREGATE LIABILITY OF ZERTO (OR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS) FOR ALL CAUSES OF ACTION UNDER THIS AGREEMENT, ALL THEORIES OF LIABILITY, OR ANY APPLICABLE TORT LAW SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE SOFTWARE. THE SOFTWARE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY INHERENTLY DANGEROUS APPLICATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF ZERTO’S LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS.
10.1 You shall indemnify, defend and hold Zerto, its affiliates and licensors, each of its and their business partners and each of its and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees), arising out of or in connection with any claim arising out of (i) Your use of the Software in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions and/or applicable law, (ii) Your violation of any term or condition of this Agreement or any applicable additional policies, or (iii) Your or Your employees’ or personnel’s negligence or willful misconduct.
10.2 Zerto shall promptly notify You of any claim subject to indemnification; provided that Zerto’s failure to do so shall not affect Your obligations hereunder, except to the extent that Zerto’s failure to promptly notify You materially delays or prejudices Your ability to defend the claim. At Zerto’s option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to Zerto’s written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without Zerto’s prior written consent and provided that Zerto may, at any time, elect to take over control of the defense and settlement of the claim.
11. Miscellaneous Provisions
11.1 You may not use or otherwise export or re-export the Software except as authorized by United States law and/or the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re- exported (a) into any U.S. embargoed countries, (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, (c) Iraq, or (d) Lebanon. By using the Software, 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.
11.2 You hereby covenant and agree that You have and will strictly adhere to all applicable anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act in connection with fulfilling Your obligations under this Agreement.
11.3 Following six months of satisfactory experience with the Software and/or Services, You hereby agree to be contacted by Zerto marketing staff for a discussion on the potential use of Your case study, to serve as a reference or to participate in a joint research project. You consent to limited use by Zerto of Your name and logo in a list of customers on Zerto’s website.
11.4 This Agreement will be governed by and construed in accordance with the laws of the state of New York, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The parties hereby expressly reject any application to this Agreement of (a) the United Nations Convention on Contracts for the International Sale of Goods; and (b) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended by that certain Protocol, done at Vienna on April 11, 1980.
11.5 Any dispute, controversy or claim arising under, out of or relating to this Agreement, including without limitation its validity, interpretation, performance, breach or termination thereof, will be settled by final and binding arbitration in New York, New York in accordance with (i) the then-current Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) and (ii) the terms of this Agreement. The terms of this Agreement will control in the event of any inconsistency between such terms and the Rules. The arbitration will be conducted by a single arbitrator reasonably familiar with the technology and business covered by this Agreement selected by mutual agreement of the parties. If the parties fail to select the arbitrator within thirty (30) days following the date of either party’s notice of arbitration, then the American Arbitration Association will appoint the arbitrator in accordance with the Rules. The arbitration proceeding and all pleadings and written evidence will be in the English language. The award of the arbitrator will be in writing setting forth findings of fact and conclusions of law. Judgment on the arbitrator’s award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. The arbitrator’s fees will be shared equally by the parties and each party will bear its own costs and attorneys’ fees. All papers, documents, or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties. Notwithstanding the foregoing provisions, each party reserves the right to seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute, controversy or claim related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights or confidential information.
11.6 The failure of Zerto to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
11.7 This Agreement constitutes the entire agreement between Zerto and You with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Zerto. Zerto may amend this Agreement at any time in its discretion. Such amendments shall be effective immediately and notified to You in the event of a material change.
11.8 You may not assign or transfer any of Your rights or obligations under this Agreement to a third party without the prior written consent of Zerto. Zerto may freely assign this Agreement (including the SSA). Any attempted assignment or transfer in violation of the foregoing will be void.
11.9 If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The Parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.
Support and Service Agreement
1. Zerto Support Services
The consideration for the Zerto Support Services shall be as set forth in Zerto quote accepted by You or by Your Zerto authorized reseller. Unless explicitly provided otherwise in this SSA or in such quote, such consideration is non-refundable.
NEITHER ZERTO NOR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS SHALL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS SSA. IN ANY CASE AND WITHOUT DEROGARING FROM THE ABOVE, THE AGGREGATE LIABILITY OF ZERTO OR ZERTO’S LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS UNDER THIS SSA OR ANY APPLICABLE TORT LAW SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR ZERTO SUPPORT SERVICES. THIS SECTION CONSTITUTES A CONTRACT FOR THE BENEFIT OF EACH OF ZERTO’S LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS.
ZERTO MAKES NO WARRANTIES WITH RESPECT TO ANY MATTER AND DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT.
Schedule A – Support Services
Zerto solutions deliver enterprise-class support features that are built into all of our products. These features include real time alerts when RPO/RTO targets are not being met, network degradation alarms and reminders to check configurations and Virtual Protection Groups. Zerto solutions are also backed by global support centers that provide on-demand access to an expert team of support engineers.
Through the self-service portal, users can track and review existing tickets, as well as open new tickets. Additionally, full access to existing knowledgebase articles is provided. The Zerto Support Team continues to add content to the knowledge base, documenting their experiences to provide you with best practices.
Zerto maintenance and support contracts include options set forth in https://www.zerto.com/myzerto/support/support-options/. Support tiers and inclusions are maintained here.
Logging a Support Case
Three options to log a support case:
For additional information on Zerto, our products and support, please go to www.zerto.com or contact your regional account manager.