This End User License Agreement or End User Agreement, as applicable (this “EULA”), is a legal agreement between you as the end user, or you as the individual or entity that has agreed to pay for the rights granted in this EULA (“End User” or “You”), and DataDirect Networks, Inc., a California corporation, and its affiliated companies (“DDN”). This EULA governs End User’s possession and use of the Software, the Services, and the related Documentation (each as defined below).
BY DOWNLOADING AND INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, By checking and/or clicking “I Accept” or a similar box or button, OR by activating any of the SOFTWARE with A license key OR OTHERWISE, or by using any of the SERVICES, End User agrees to all of the terms and conditions in this EULA. If End User does not agree to all of the terms and conditions in this EULA, End User must not install, Download, activate, or use any of the SOFTWARE or SERVICES. FURTHER, End User must not check and/or click “I Accept” or any similar box or button To download, install, or PROCEED WITH activation or use OF ANY, SOFTWARE OR SERVICES. IF END USER does not agree to all of the terms and conditions in this eula, End User may return the unused software for a full refund, provided that End User’s right to return the unused software for a full refund expires thirty (30) days after THE purchase of the software from DDN or a THIRD PARTY VENDOR, and THE REFUND applies only if End User is the original end user purchaser.
1. DEFINITIONS
“Community (DevOps) Edition” means a limited functionality perpetual version of the Software, if any, designated as such and which is made available without charge by DDN.
“Documentation” means the generally available documentation provided by DDN, including, but not limited to, documentation provided with the Services, end user documentation provided in connection with the Software, or the specific terms of Your Quote, as applicable.
“Enterprise Edition” means a perpetual version of the Software designated as such and which is made available by DDN for the applicable fees with the specific functionality You have licensed.
“EULA” means this DDN EULA and a Quote, if applicable. In the event of a conflict between the terms of this EULA and an applicable Quote, the Quote shall control and govern, but only to the extent of the specific conflict(s).
“Factory Installed Software” means Software that is installed by DDN on a DDN hardware product prior to delivery of that DDN hardware product to You, and all Updates thereto. Factory Installed Software may include, without limitation, firmware and certain third party file server programs.
“GPL Software” refers to certain open source Third Party Software that DDN may provide to You in connection with DDN hardware products. GPL Software is provided by DDN to You solely under the terms of (a) the GNU General Public License, Version 2, June 1991 (the “GPLv2”) and (b) the GNU General Public License, Version 3, June 2007 (the “GPLv3”), and (3) other GPL licenses as may be cited in Documentation provided with the applicable Software or Services a copy of each of which can be obtained from the website of the relevant open source Third Party Software. Consistent with the requirements of the applicable GPL Software license, DDN will provide a complete machine-readable copy of the source code for GPL Software for a charge of no more than DDN’s cost of physically performing such distribution, provided that such copy is requested within three (3) years following Your receipt of the corresponding GPL Software from DDN. This offer is valid to anyone in receipt of this information.
“License Key” means a document (in physical or electronic format) provided by DDN or its authorized third party vendors that identifies: (i) the Software, including edition, licensed to You; (ii) the machine signature of the computer on which use of the Software is enabled; (iii) the codes that initialize use of such computer; and (iv) the License Term, if applicable.
“License Term” means the period during which the Software may be used by You, commencing on the date of issuance of Your License Key and subject to Your compliance with the terms and conditions of this EULA continuing (a) in the case of the Enterprise Edition and the Community (DevOps) Edition licenses, in perpetuity, (b) in the case of the Trial Edition licenses, for the period specified by DDN when You register the Product or acquire Your License Key and (c) in the case of a Software Subscription, for the period set forth in an applicable Quote..
“Quote” means a quote and any related terms and conditions of sale issued by DDN and accepted by You by execution or by issuance of a purchase order referencing such quote.
“Remote Software” means Software that is meant to be installed on End User’s own hardware and that is not installed by DDN or a DDN reseller on a DDN hardware product prior to delivery of that DDN hardware product to End User, and all Updates thereto. Remote Software may include, without limitation, DDN’s GUI program.
“Services” means any cloud -based services (including software-as-a-service or platform-as-a-service) provided by DDN or a third party provider (the “Service Provider”).; provided, that if the Service Provider is a third-party provider, then it must be authorized by DDN to offer and provide their Services in conjunction with this EULA (a “Third Party Service Provider”).
“Service Terms” means the most current terms of use or service agreement required by the Service Provider for use of the Services.
“Site” means the DDN website: http//www.ddn.com
“Software” means all software and firmware that accompanies this EULA (including but not limited to Factory Installed Software and Remote Software, and including all associated applications, plug-ins and adapters that are provided and enabled, and any bug fixes, patches and maintenance releases provided by DDN), all copies thereof, all media associated therewith, and all Updates thereto. “Software” does not mean or include any software or other materials for which a separate end user license agreement is provided (including but not limited to Third Party Software). “Software” specifically excludes (a) any features that are not enabled by the License Key corresponding to the edition You have licensed, (b) any Third Party Software, and (c) any other current or future editions or any separately priced DDN products containing substantially new functionality and features that may be developed or offered from time to time.
“Software Subscription” means a Subscription for Software as set forth in an appliable Quote.
“Subscription” or “Subscription Term” means the period during which You are entitled (subject to any required fee payments and Your compliance with this EULA) to use, access, and install the specified Software and Services (including related Documentation) up to the maximum quantities, capacities or other limitations you have purchased (whether You consume or use the full instances, capacity, or quantities permitted). The Software and Services subject to the Subscription are not for distribution or use separate from what is allowed pursuant to this EULA or the Service Terms. Such Subscription Term will commence on the earlier of the date (as applicable): of issuance of Your License Key, access or activation is allowed, or as set forth in the Quote.
“Storage Space” means the total amount of disk storage that is managed by the Software but excluding disk storage occupied by the Software’s operating system or as otherwise determined by DDN.
“Third Party Software” means any separate third-party software, including but not limited to any third-party open-source software (including, but not limited to, the GPL Software), which may be included with the Software or distributed or bundled with the Software.
“Third Party Vendor” means a DDN authorized reseller.
“Trial Edition” means a time-limited version, which could include a beta version, of the Software or Services (including related Documentation) designated as such and which is made available without charge by DDN with the specific functionality You have licensed or have the right to use.
“Updates” means all updates, upgrades, new releases, modifications, bug fixes, and/or supplements that may be provided by DDN from time to time, whether through an online download process or otherwise.
“Use” means to install, store, load, execute, and display one copy of the Software on one device at a time for End User’s internal business purposes.
“You” means the natural person or the entity that is agreeing to be bound by this EULA, and your employees and third party contractors that provide services to You that You shall cause to be bound by this EULA prior to use of the Software or Services. You represent and warrant that the individual entering into or otherwise accepting this EULA on behalf of You is Your employee or agent and has full binding authority to enter into this EULA on behalf of You.
2. TERMS AND CONDITIONS
2.1 Specific Terms and Conditions for Enterprise Edition, Community (DevOps) Edition, Trial Edition and Software Subscription.
(a) With respect to Enterprise Edition, Community (DevOps) Edition and Trial Edition licenses for Software, DDN grants You a non-exclusive, non-sublicensable, non-transferable, perpetual (except as to Trial Edition licenses), revocable, worldwide license for a user designated by You to use the Software (in object code format) during the License Term, subject to the terms and conditions of this EULA, the payment of all fees, and in accordance with the Documentation. Subject to any further limitations set forth in this EULA and the Documentation and any other relevant agreements, You may install, use or deploy the Software up to the maximum quantities, capacities or other limitations as You have licensed and for which You have paid the applicable fees. The Software may not otherwise be shared or used concurrently on different computers, except in compliance with the foregoing. The Enterprise Edition, Community (DevOps) Edition and Trial Edition licenses must be activated with a License Key that can be obtained by registering the Software with DDN. If You have obtained the Software or Services under discounted educational pricing, You are only permitted to use the Software or Services for educational and academic or other non-commercial purposes only and such use expressly excludes any commercial or production purposes.
(b) If You have acquired a Community (DevOps) Edition for Software or Services, the total amount of Storage Space is limited as specified on the Site and is subject to change without notice. The Community (DevOps) Edition may ONLY be used for educational, academic, and other non-commercial purposes expressly excluding any commercial usage or production purposes.
(c) If you obtain a Trial Edition for Software or Services, the Trial Edition may ONLY be used for the sole purpose of evaluating the suitability of the Software or Services for use or licensing for a paid License Term or Subscription Term, as applicable, and the Trial Edition is only valid for the period specified by DDN in a Quote or when You register the Software or when You acquire Your License Key or obtain permission in writing to activate or access the Software or Services.
2.2. Specific Terms and Conditions for Services.
(a) Subject to the terms of this EULA, the payment of all fees, and Your compliance with any applicable Service Terms, DDN grants You a personal, non-exclusive, worldwide, limited, non-transferable and terminable right to access, execute, and use the Services (including downloading and installing certain Software Updates and components to Your device to enable use of the Services, if applicable) for Your internal business purposes or otherwise only as strictly permitted below or in this EULA. A separate, fully paid license is required for each instance in use either separately or concurrently when using the Services.
(b) Use of the Services or any of its components outside of the scope of this EULA constitutes a material breach and You agree to promptly pay to DDN any additional use fees when notified by DDN or by the Service Provider for any additional fees for Services, as applicable. DDN has no obligation to deliver Software Updates to You but may provide Software Updates to enable the Services or otherwise provide Support, if applicable.
2.3. Specific Terms and Conditions for Software (including Factory Installed Software and Remote Software).
(a) Subject to all terms and conditions in this EULA, DDN grants to You a limited, revocable, non-exclusive, non-sublicenseable license to: (i) use Factory Installed Software, only in object code form, and only on the DDN hardware products that are purchased by You and that contain such software when first delivered to You, provided that You may not Use Factory Installed Software in connection with any storage media (e.g., disk drives) or storage media enclosures that were not purchased from DDN; and (ii) use Remote Software, only in object code form, and only on the number of Your computers and for the period of time for which You have purchased a license (as specified in the corresponding Quote); and (iii) make one copy of the Software, only in object code form, and Use that copy only for backup and archival purposes.
(b) With respect to Factory Installed Software and Remote Software, subject to all terms and conditions in this EULA, DDN grants You a limited, revocable, non-exclusive, non-sublicenseable license to copy and use the Documentation to the limited extent reasonably necessary to support Your permissible Use of the Software.
(c) You acknowledge and agree that the Software and the Documentation have been licensed to You pursuant to the terms and conditions of this EULA, and that the Software and the Documentation have not been sold to You. DDN and its suppliers and licensors reserve all rights not expressly granted in this EULA. You shall not use or copy the Software or the Documentation except as is expressly authorized in this EULA. You acknowledge and agree that the Software and the Documentation are protected by United States copyright laws and international treaty provisions. Except as otherwise expressly provided in this EULA, You must treat the Software and the Documentation like any other copyrighted material. You shall not knowingly take any action that would cause the Software or the Documentation to be placed in the public domain.
(d) You may not, and You agree that You will not, transfer, assign, rent, lease, lend, resell, or in any way distribute or transfer the Software or the Documentation (or any rights in this EULA, the Software, or the Documentation) to any third parties, including by operation of law, without DDN’s prior written approval, payment to DDN of any applicable fees, and compliance with any additional applicable third party terms. Upon any approved transfer of this EULA, Your rights under this EULA will terminate and You will immediately deliver the Software, the Documentation, and all copies thereof to the transferee. Prior to any transfer, the transferee must agree in writing to the terms of this EULA and upon such agreement, the transferee will be considered “You” for purposes of this EULA. You may transfer Factory Installed Software only upon transfer of the associated DDN hardware product and subject to the conditions in this Section.
(e) Some Software may require License Keys or contain other technical protection measures. You acknowledge that DDN may monitor Your compliance with Use restrictions and authorizations, remotely or otherwise. If DDN makes a license management program available which records and reports Software usage information, You agree to appropriately install, configure, and execute such license management program beginning no later than one hundred eighty (180) days from the date it is made available to You and continuing for the period that the Software is used.
2.4. General Terms and Conditions for All Software and Services.
(a) The Software is licensed, not sold. Except as expressly licensed under this EULA, all rights are reserved by DDN.
(b) You may license the Software either through DDN or a Third Party Vendor. You may be granted the right to use the Services only through DDN or a Third Party Service Provider. When You purchase the Software or Services, then the applicable terms and conditions of this EULA, along with the terms and conditions provided by any Third Party Vendor or the Service Terms (if applicable), will govern such purchase. To the extent that the Third Party Vendor terms or the Service Terms conflict with the terms of this EULA, then as between You and DDN, this EULA will control, but only to the extent of the specific conflict(s).
(c) Unless You have the express written authorization of DDN, You represent, warrant, and covenant that You will NOT, as applicable to the Software (i) copy, sell, sublicense, or otherwise transfer the Software to any third party; (ii) remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software; (iii) decompile, decrypt, disassemble, reverse engineer, or otherwise attempt to discover, reconstruct, identify , or derive the source code from the Software or any user interface techniques, algorithms, logic, protocols, or specifications included, incorporated, or implemented therein, in whole or in part, except to the extent expressly permitted by applicable law, and to the extent that DDN is not permitted by that applicable law to exclude or limit the foregoing rights; (iv) disable, circumvent or de-install any computer system license management routines, access codes or control programs; (v) modify, port, or translate the Software or the Documentation; or (vi) modify or create derivative works of the Software or Documentation. You agree that upon a breach of the covenants above, DDN shall have the right, without notice, liability, or demand to disable the Software or otherwise limit its functionality in addition to seeking any other remedies to which it may be entitled. Where You have any other rights with respect to the Software or the Documentation mandated under statute, You will provide DDN with reasonably detailed information regarding any intended modifications, porting, translations, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore. If You make any copies of the Software or the Documentation in accordance with this EULA, You must reproduce all proprietary notices and legends contained in the originals.
(d) DDN may (i) update, modify or discontinue offering the Software or Services (except to the extent such obligation is set forth in a valid and existing agreement or Quote), (ii) discontinue offering support and maintenance for the Software (except to the extent such obligation is set forth in a valid and existing support agreement or Quote), or (iii) revise the Documentation at any time without prior notice to You. If DDN delivers a revision of the Software, You agree and acknowledge that DDN shall have no responsibility for testing that the Software is compatible with previously delivered versions of the Software, other than to one (1) prior minor version, if any (designated as e.g., version 2.0 to 2.1). All prices mentioned on the DDN Site are subject to change without notice.
(e) Descriptions; Pricing; Errors. DDN attempts to be as accurate as possible and eliminate errors in the Software, Services, and Documentation. However, DDN does not warrant that the Software, Services, and the Documentation are accurate, complete, reliable, stable, defect free, current, or error-free. In the event of an error, DDN reserves the right to correct such error at any time and subject to any warranties, if applicable.
(f) If You are using the Software or Services to provide a service to Your customers, You must comply fully at all times with the following requirements: (i) You and Your customers and affiliates and subsidiaries must comply with this EULA, and any associated Service Terms, and You shall fully indemnify DDN, its licensors, and Third Party Vendors or Third Party Service Providers for a breach; (ii) You must require any user of Your service (including Your subsidiaries and affiliates) to agree to terms that limit both DDN’s and its suppliers’ (including but not limited to third-party Service Providers and Third Party Vendors) liability in a manner substantially similar to and no less protective than this EULA; (iii) You must obtain all legally required consents regarding the storage, use, transfer, or handling of your data or any third party data; (iv) You must use the Software or Services in a manner that complies with any and all laws and regulations, including but not limited to data protection regulations; (v) You must indemnify, defend, and hold harmless DDN, each of its affiliates (as well as the officers, directors, and employees of each DDN entity) and DDN agents from and against any claim, fine, loss, or action arising from Your breach of this EULA, applicable third party terms and conditions, or any Service Terms, and You must either require Your subsidiaries and affiliates to do the same or provide indemnity on their behalf; (vi) You must provide support to Your customers without obligating DDN or the Service Provider (if applicable) to provide any support; and (vii) You must permit audit(s) by DDN or its Service Providers, agents, suppliers or licensors to confirm Your compliance with this EULA, applicable law or the Service Terms.
(g) Third Party Software.
(i) The Third Party Software is separately licensed and governed exclusively by the applicable license agreement accompanying, included or referenced with such software packages (“Third Party Terms”). You agree to comply with the Third Party Terms. Open source Third Party Software may be distributed and contained within the Software or Services, where such independent code is licensed under an open-source license (“Open-Source Licenses”). Open Source Licenses include the GPL Licenses. This EULA does not alter any rights or obligations You may have under those Open Source Licenses or the Third Party Terms. Until the earlier of (A) three (3) years from the date of Your purchase of the Software or Services, or (B) expiration or termination of the applicable License Term or Subscription Term, DDN will, at Your written request, provide a copy of the code, if and as required by the applicable Open Source License. You may request a list of the components and licenses at support@ddn.com.
(ii) DDN DISCLAIMS ANY AND ALL WARRANTIES EXPRESS OR IMPLIED FROM ANY THIRD PARTIES REGARDING ANY THIRD PARTY SOFTWARE, AND THE USE OF ANY OR ALL THIRD PARTY SOFTWARE IN CONNECTION WITH THE SOFTWARE OR SERVICES INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NO THIRD PARTY LICENSORS OF THIRD PARTY SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND WHETHER MADE UNDER CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF ANY THIRD PARTY SOFTWARE OR THE EXERCISE OF ANY RIGHTS GRANTED UNDER EITHER OR BOTH THIS EULA AND THE LEGAL TERMS APPLICABLE TO ANY THIRD PARTY SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. FEES
3.1. Payment of Fees
In consideration for the license granted by DDN under this EULA, You shall pay DDN the fees as set forth in the applicable Quote or otherwise quoted to You in writing. All amounts due by You to DDN and not paid within thirty (30) days of the due date shall bear interest at the lower of the rate of one and one-half percent (1½ %) per month or the highest rate allowed by law, from the date due until the date payment is received by DDN.
3.2. Taxes
In addition to the other amounts payable under this EULA, You shall pay all sales, use, excise, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this EULA (excepting DDN’s corporate franchise and net income taxes) (“Tax”). If DDN is required to pay any Tax, You must reimburse DDN for such amounts. You agree to indemnify DDN for any Tax and related costs, interests, and penalties paid or payable by DDN for Your use of the Software or Services.
3.3. Compliance Audit
You agree to implement reasonable controls to ensure compliance with the intended use of the Software and Services authorized by this EULA. DDN reserves the right to have a compliance audit performed, or have an independent accounting firm perform an audit, no more often than once every 12 months (unless the audit determines further auditing is required), of Your deployment and use of the Software or Services, or compliance with this EULA at any time during Your normal business hours at Your principal place of business, upon no less than five(5) business days written notice and at DDN’s expense, by inspecting records, information and systems that are directly relevant to such compliance or verification. If the audit discloses material non- compliance or underpayment, You shall promptly pay to DDN any additional use fees identified by DDN, calculated in accordance with DDN’s price list, and the reasonable costs of conducting such audit (including fees related to achieving and ensuring compliance), if any, and you shall immediately achieve and ensure compliance, and if you are unable to immediately do so, you will furnish DDN a report on your projected timeline and your means/costs for reaching compliance. The audit and any results thereof or information learned shall be maintained as confidential information.
3.4. Data Capture
You acknowledge and agree that DDN shall have access (remotely or otherwise) to the Software and Services and the right to capture data relating to Your use of the Software and Services for the purpose of (a) performing diagnostics of the Software and Services in response to a request of You for support or a believed issue by DDN, (b) monitoring Your usage of the Software and Services to ensure that authorized access or the number of licenses and procedures are equal to the authorized number of the same, and (c) to otherwise capture, compile or analyze any non-personally identifiable data or information resulting from Your use of the Software or Services in the form and content as may be determined by DDN from time to time. Such data or information collected by DDN shall be solely owned by DDN and may be used by DDN for any lawful business purpose.
4. MAINTENANCE AND SUPPORT FOR SOFTWARE
4.1. You shall be entitled to receive the support and maintenance for the use of the Software and the Third Party Software (collectively, “Support”) during the applicable support period to the extent set forth on the Site or on an applicable Quote and at the support level for which You have paid a separate additional fee. No Support is provided for Trial Edition and Community (DevOps) Edition licenses.
4.2. You acknowledge that DDN has no obligation to (a) continue offering Support after expiration of the applicable support period, (b provide Updates for other than the current release of the Software, (c) issue Updates at any time or on any regular schedule and DDN shall develop and issue Updates in its sole and absolute discretion, (d) provide any support or maintenance unless You have provided complete and accurate documentation of the issue and DDN is able to replicate the issue, or (e) provide any Support with respect to any hardware issues, including, without limitation, resulting from use of any hardware that does not meet DDN minimum specifications. Upon Your installation of any Updates to Software, You shall have no further rights, and DDN shall have no further obligations, with respect to those portions of the Software that such Update was intended to replace. If additional or different terms or conditions accompany an Update, You acknowledge and agree that Your Use of that Update will be subject to those additional or different terms and conditions.
4.3. No Support of Modifications. No modifications of the Software or any Third Party Software will be supported by DDN unless indicated otherwise by DDN’s express written authorization. DDN will not be liable for any modifications to the Software (or any Third Party Software included with the Software), and DDN will not be liable for any errors or damages resulting from such modifications. DDN DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE USE OF ANY THIRD PARTY SOFTWARE.
4.4. Any administration or reconfiguration of the Software shall be in accordance with the Documentation.
5. OWNERSHIP; CONFIDENTIALITY
5.1. You acknowledge and agree that DDN, its suppliers, and/or its licensors, as applicable, own and shall retain all right, title, and interest in and to the Software, Services, Documentation and License Keys and in all related copyrights, trade secrets, patents, trademarks, trade names, inventions, knowhow, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. Except for the limited license expressly granted in this EULA, You do not have rights to any intellectual property rights in or to the Software or Services. Further, DDN’s suppliers and licensors are intended beneficiaries under this EULA and independently may protect their rights in the Software, Services, and the Documentation in the event of any infringement or breach of this EULA.
5.2. Any suggested modifications or improvements to the Software, Services, and Documentation submitted to DDN by You become DDN’s exclusive property to exploit or use as DDN solely deems appropriate without necessity for remuneration or attribution to You.
5.4. (a) You acknowledge that the Software, Services, non-publicly available Documentation, License Keys, and any benchmarking data and related information contains trade secrets and confidential material and You agree to maintain all such information in confidence and apply security measures no less stringent than the measures which You apply to protect Your own confidential information, but not less than a reasonable degree of care, to prevent their unauthorized disclosure and use.
(b) Subject to any restrictions imposed by applicable law, the period of confidentiality shall be indefinite. You agree that You shall not use any such information other than in normal use of the Software and Services under the licenses granted in this EULA.
(c) This EULA does not prevent You from using the Software for internal benchmarking purposes. However, You shall treat all benchmarking data relating to the Software, and any other results of Your use or testing of the Software which are indicative of its performance, efficacy, reliability or quality, as confidential information and You shall not disclose such confidential information to any third party without the express written permission of DDN.
6. LIMITED WARRANTY
6.1. (a) Software Limited Warranty. Except as to any Trial Edition and Community (DevOps) Edition licenses, for a period of thirty (30) days following the earlier of DDN’s initial shipment of the Software, Your initial installation of the Software (but not including any Updates), or commencement of Your Software Subscription, DDN warrants only to the original End User and only as it applies to unmodified portions of the Software, that such Software, as delivered to You, will substantially conform to the corresponding, then-current Documentation.
(b) AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY-DAY PERIOD FOR SOFTWARE, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. DDN DOES NOT PROVIDE ANY WARRANTY OR GUARANTEE OF ANY KIND FOR TRIAL EDITION AND COMMUNITY (DEVOPS) LICENSES.
(c) Any Updates to the Software, including without limitation, those provided after the expiration of such 30 day period, are not covered by any warranty or condition, express, implied or statutory. To the extent that the Software is derived from Third Party Software or licensed from third parties, such third party does not warrant the Software, assume any liability regarding use of the Software, or undertake to furnish You any support or information relating to the Software. You shall be solely responsible for the choice of proper hardware (if approved by DDN, as applicable to Software) and all hardware maintenance, including periodic inspections, adjustments, and repair to the hardware.
6.2. Exclusive Remedy for Breach of Software Warranty. Your sole and exclusive remedy, and DDN’s entire liability, under the Software warranty in Section 6.1(a), is for DDN to use commercially reasonable efforts to cause any alleged defective or malfunctioning Software to substantially conform to the corresponding Documentation. Notwithstanding the foregoing, DDN will have no liability or obligation for any alleged defective or malfunctioning Software under this Section 6.1(a) if: (a) You fail to notify DDN of the alleged defect or malfunction during the warranty period, or (b) the alleged defect or malfunction is caused by (i) use of the Software in combination with any hardware or other software that has not been approved in writing by DDN, (ii) the negligence or fault of You or a third party, (iii) Your failure to follow the instructions set forth in the corresponding Documentation, or (iv) modifications to the Software made by any person other than DDN or an authorized representative of DDN. THE REMEDY SELECTED BY DDN IN ACCORDANCE WITH THIS PARAGRAPH SHALL BE YOUR EXCLUSIVE AND SOLE REMEDY FOR ANY BREACH OF WARRANTY.
6.3. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, DDN DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE AND SERVICES WILL BE FREE OF DEFECT, STABLE, ERROR-FREE OR UNINTERRUPTED AND THE SOFTWARE,AND SERVICESIS PROVIDED TO YOU ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY AND WHETHER ARISING OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOU ASSUME ALL RISKS, INCLUDING BUT NOT LIMITED TO DATA LOSS OR DATA BREACH, ASSOCIATED WITH USE OF THE SOFTWARE AND SERVICES TOGETHER WITH ANY ASSOCIATED SERVICES OR SOFTWARE. DDN MAKES NO WARRANTY THAT THE SERVICES (INCLUDING SOFTWARE OR HARDWARE THAT ARE DEPENDENT ON THE SERVICES ) WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. DDN EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
7.1. INDEMNIFICATION
7.1 You agree to indemnify, defend, and hold harmless DDN and its directors, shareholders, officers, employees, licensors, affiliates, subsidiaries, and Third Party Vendors and Service Providers against any losses (including but not limited to claims, penalties, fines, awards, costs, final judgments, settlements, damages, liabilities, or expenses, including reasonable attorneys’ fees)(“Losses”) for any claim, action or suit brought or threatened and based on, arising out of, or related to: (a) any indemnification agreed to in other sections of this EULA, including Sections 2.4(f), 3.2, and 11.7; (b) a violation or breach of the Service Terms; (c) Your use or misuse of the Software, Documentation, or Services; (d) Your failure to comply with any term, condition, or restriction in this EULA; or (e) any of Your content or data stored, accessed, or otherwise used in conjunction with the Software or Services. DDN shall promptly notify You of such action and give You authority, information, and assistance (at Your expense) for the defense of such suit or proceeding and You shall have sole control of the defense or settlement of any claim or suit.
7.2. IP Infringement Indemnification. Expressly subject to Section 10.1, and except as to any Trial Edition and Community (DevOps) Edition licenses (where DDN has no liability or indemnification obligations), DDN agrees to defend You and Your directors, shareholders, officers and employees for any Losses in any claim, action or suit brought or threatened and based on or related to an allegation that the Software or DDN Services (where the term “DDN Services” does not include Third Party Software or Third Party Services or any products, software, or services not provided by DDN) infringes a U.S,. Canadian or European Union copyright, trade secret or validly issued patent right of a third party (that is not affiliated with You), including reasonable attorneys’ fees. You shall promptly notify DDN of such action and give DDN authority, information, and assistance (at DDN’s expense) for the defense of such suit or proceeding and DDN shall have sole control of the defense or settlement of any claim or suit. DDN shall have no liability or obligation hereunder for any infringement based on, arising out of, or resulting from(a) the combination or use of the Software or DDN Services with other programs, components or products to the extent arising from the combination or use, if the infringement would not have occurred but for the combination; (b) any modification of the Software or DDN Services by anyone other than DDN or an authorized party acting on DDN’s behalf, (c) the use of other than the most recent version of the Software or DDN Services if the infringement or claim would have been avoided by use of the most recent version; or (d) use of the Software or DDN Services in any way not contemplated under this EULA. Notwithstanding the foregoing, if any Software or DDN Services becomes, or in DDN’s opinion is likely to become, the subject of a claim of infringement, DDN will, at its option: (i) procure for You the right to continue using the Software or DDN Services; (ii) replace the Software or DDN Services with a non-infringing product substantially complying with the specifications of the Software or DDN Services; or (iii) modify the Software or DDN Services so it becomes non-infringing and performs in a substantially similar manner to the original Software or DDN Services. Upon failure of the foregoing, at DDN’s option, DDN may require You to cease any infringing use of the Software or DDN Services and DDN or its agents will refund the fees paid DDN for the infringing product, less a reasonable allowance for use. YOUR SOLE AND EXCLUSIVE REMEDIES AND DDN’S SOLE AND EXCLUSIVE LIABILITIES FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS ARE SET FORTH IN THIS SECTION.
8. USE OF YOUR INFORMATION/ACTIVATION OF CALL HOME FEATURE.
8.1. Use of Your Information. With respect to any information You provide to DDN in connection with the Software or the Documentation, DDN may use such information for any purpose without restriction, including, without limitation, for enhanced communication, license compliance, product support and development purposes, provided that DDN will not use such information without Your consent or as otherwise in a form that identifies You. DDN prioritizes the confidentiality of Your information by securely storing data; for further details please refer to DDN’s most current privacy policy found on the Site the DDN Privacy Policy at the Site.
8.2. Activation of Call Home Feature. During the term of this EULA, You may elect to activate the Call Home feature in DDN’s health monitoring software. This feature allows DDN to receive automated system log and configuration data, facilitating remote monitoring and diagnostics to enable DDN to respond to error communications more quickly and efficiently. For more information and instructions on how to activate the Call Home feature, please refer to the Installation and Administration Guide located on the DDN Customer Support Portal at https://support.ddn.io/.
9. TERMINATION
9.1. Termination. (a) DDN may terminate use of the Software or Services immediately and without notice if You fail to comply with any term of this EULA. DDN has the option in its sole discretion to terminate individual instances (or permit the Services to terminate) when used in excess of Your actual license or usage rights, for non- payment, or otherwise when used in a manner not permitted by the Service Terms or this EULA. You may terminate this EULA immediately (except for any survival clauses) by ceasing use of the Services or returning the Software to DDN or by destroying the Software together with all copies, modifications, and merged portions thereof in any form, where DDN must be notified of such destruction in a writing or cessation of use of the Services as certified by one of Your authorized executives. In case of such termination by You, You will still owe and be liable for any unpaid fees. Each party shall have the right to terminate this EULA as to any Trial Edition licenses or Community (DevOps) Edition licenses for any reason at any time. Either party shall have the right to terminate this EULA in the event the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver, or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
(b) If the Software or Services (and the applicable Documentation) have been licensed or provided to You for a Trial Edition or other evaluation purposes, this EULA will only be effective until and will terminate at the end of the designated evaluation or Trial Edition period. If the Software or Services (and the applicable Documentation) have been licensed or provided to You for a limited term, each as specified in the applicable Quote, sales acknowledgement, invoice, or other writing, then this EULA will be effective only until the end of such term limited term. Software that is subject to any evaluation, limited term or Trial Edition license may contain code where most or all of the features of such Software may be disabled by DDN upon expiration of such Trial Edition or other evaluation period, limited term. Further, unless You have paid the applicable license fee for any additional licenses, You shall have no rights to use the Software or Services (and the corresponding Documentation) upon expiration or termination of the License Term or Subscription Term, as applicable.
9.2. Effect of Termination; Survival. In the event of termination, You must return all DDN hardware and Software or destroy all copies of the Software and/or cease use of the Services, as applicable, and notify DDN in writing and certify such destruction in writing as certified by one of Your authorized executives. The parties’ rights and obligations which, by their sense and context are intended to survive the termination of this EULA will survive such termination, cancellation, or expiration, where such clauses include but are not limited to those rights and obligations of the parties set forth in Sections 1 (Definitions), 2.4, 3 (Fees), 3.3 (Compliance Audit), 4.2, 5 (Ownership; Confidentiality), 6.3, 9 (Termination), 10 (Limitations of Liability) and 11 (General).
10. LIMITATIONS OF LIABILITY
10.1. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS EULA FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL DDN, ITS LICENSORS OR RESELLERS, OR THE THIRD PARTY VENDORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, LOST OR CORRUPTED DATA, INTERRUPTION OF BUSINESS, GOODWILL, ANTICIPATED SAVINGS , PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES OR OTHER SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS EULA OR THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DOCUMENTATION SUPPLIED THEREWITH, EVEN IF DDN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL DDN’S TOTAL AGGREGATE LIABILITY BASED ON, ARISING OUT OF, OR RELATED TO THIS EULA OR THE SOFTWARE, SERVICES, OR DOCUMENTATION EXCEED THE GREATER OF THE FEES ACTUALLY RECEIVED BY DDN FROM YOU FOR THE SOFTWARE, SERVICES, OR DOCUMENTATION AT ISSUE OR TEN DOLLARS ($10). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 10.1 DOES NOT LIMIT ANY LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR FOR FRAUDULENT MISREPRESENTATION, OR FOR A CLAIM WHICH CANNOT BE LIMITED AS A MATTER OF LAW (IN WHICH CASE SUCH CLAIM WILL BE LIMITED TO THE GREATEST EXTENT ALLOWED BY LAW). FURTHER, DDN IS NOT RESPONSIBLE FOR LOSSES, DAMAGES OR CLAIMS ATTRIBUTABLE TO ANY THIRD PARTY ACTS, OMISSIONS, NEGLIGENCE OR INTENTIONAL ACTS OF ANY KIND IN CONNECTION WITH YOUR USE OF THE SOFTWARE OR SERVICES.
10.2. Disclaimer of Tort Liability. The foregoing warranties and remedies are EXCLUSIVE, and You waive and release all other warranties, obligations, and liabilities of Us and all other remedies, claims, and rights that You may have relating in any way to the Software or Services covered by this EULA, whether arising from contract, warranty, strict liability or tort or from DDN’s negligence, tort, or other fault, including claims for loss of or damage to the Software or Services.
10.3. Basis of Bargain. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of this EULA. DDN would not be able to provide the Software or Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of DDN’s distributors, resellers and suppliers, including Third Party Vendors and Third Party Service Providers.
11. GENERAL
11.1. Entire Agreement; Waiver; Severability. This EULA constitutes the entire and only agreement between the parties and all other prior negotiations, representations, agreements, and understandings are superseded by this EULA. No failure of DDN to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified or any rights under it waived by a written document executed by the party against which it is asserted. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
11.2. Software Copyright Information and Notices. Software copyright information and other related Open Source License details are included as part of notices in the Documentation or other documentation published by DDN (e.g., NOTICES.TXT or NOTICES. PDF)
11.3. Data Privacy. You have sole responsibility for personal data managed or stored using the Services and agree to comply with all applicable data privacy laws. DDN assumes no responsibility or liability for any personal data (including third party personal data) that You choose to manage and/or store using the Services except where DDN is the Service Provider, where DDN will comply with applicable law. Responsibility for the personal data lies with You. It is Your data and Your responsibility to protect and manage the data and obtain required consents in accordance with applicable data privacy laws. Unless DDN is the Service Provider (in which case the DDN Service Terms will apply), DDN does not request nor need access to any of Your personal data. Further, data may be stored with Third Party Service Providers for which different terms may govern the management of and access to the data. Selection of the Services is Your responsibility, and You should carefully consider the risks when using the Services. Unless DDN is the Service Provider (in which case the DDN Service Terms will apply), DDN is not and will not be responsible for any data loss or errors, omissions, or violations of applicable privacy laws or regulations by a third party or its suppliers (including any Third Party Service Providers). If applicable, DDN’s most current privacy policy is found on the Site.
11.4. United States Government End Users. For any Software or Services licensed directly or indirectly on behalf of a unit or agency of the United States Government, this paragraph applies. DDN’s proprietary software embodied in the Software or Services (if applicable): (a) was developed at private expense and is in all respects DDN’s proprietary information; (b) was not developed with government funds; (c) is DDN’s trade secret for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government’s use, duplication or disclosure of such software is subject to the restrictions set forth by DDN.
11.5. Attorneys’ Fees. In the event of any arbitration or legal proceeding arising out of or relating to this EULA, the arbitrator or court in such proceeding shall have discretion to award the prevailing party’s reasonable and actually incurred attorneys’ fees and costs in such action or proceeding, including the costs of enforcement of any judgment.
11.6. Publicity. During the term of this EULA, You agree that DDN shall have the revocable right, but not the obligation, to include Your name and logo as a customer of DDN on DDN’s website and in other marketing materials promoting DDN’s products. In addition, You agree to reasonably participate in at least one of the following marketing activities: a recorded interview and/or written case study, a public quote, a public presentation (e.g., webinar or live event), a conversation with an industry analyst, or serving as a reference in a peer-to-peer call. DDN will coordinate all such activities in good faith and with reasonable notice, and Your approval will be obtained for any public-facing materials. You may revoke the rights granted herein at any time by providing written notice to DDN at marketing@ddn.com, and DDN shall promptly cease any further use of Your name, logo, or materials upon receipt of such notice. All use of Your logo shall remain subject to any trademark usage guidelines provided in writing to DDN by You.
11.7 Compliance with Laws; Export Control and Software and Services Usage Restrictions. (a) You agree to comply with all applicable federal, state and local laws with respect to your use of the Software or Services. You acknowledge and agree that the Software, Services, technical data and/or services (“Items”), are subject to U.S. and other export controls, import, customs, U.S. antiboycott and economic sanctions laws (“Export Control Laws”). You will comply with all applicable Export Control Laws and not provide any Items to anyone in a country or other destination that is subject to a United States Government export embargo (an “Embargoed Destination”), to a representative of an Embargoed Destination, or to persons or for purposes prohibited under the Export Control Laws. Prohibited end uses include: research on or development of chemical, biological or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities. In addition to any other remedy it may have, DDN may terminate this EULA immediately and without notice or liability, and cancel the download, activation and/or provision of any maintenance or other customer service involving any Item if (i) DDN has not received all export- related documentation requested by DDN or (ii) DDN believes that such activity may violate any Export Control Laws or DDN’s own compliance policies. If You access the Site, or purchase, download, or activate Items from the Website, You represent that You are not in any Embargoed Destination and that You are not a person or entity (or owned by one or more entities) that has/have been sanctioned or otherwise listed by the United States on a prohibited persons list issued by the U.S. Departments of the Treasury, Commerce or State or any other governmental entity. You shall indemnify DDN for all losses, costs, claims, damages and expenses (including attorneys’ fees and expenses) arising from Your violation or alleged violation of any applicable international, federal, state or local law, including without limitation, any Export Control Law.
(b) You shall not permit any person other than Your employees and authorized agents to possess or use the Software, Services, or Documentation (unless otherwise specifically permitted under this EULA) and You shall cause all such employees and authorized agents to abide by all terms and conditions imposed upon You in this EULA. You may not exceed the number of licenses, agents, tiers, nodes, seats, or other Use restrictions or authorizations agreed to and paid for by You. All Software and Services are solely for use in standard commercial applications and are not intended for use in any critical safety system, nuclear facility, aircraft navigation or communication system, air traffic control system, life support machine, or in any other application in which the failure of the Software or Services could lead to death, personal injury, or real or personal property damage (collectively, “High-Risk Applications”). DDN disclaims all liability in connection with the use of the Software or Services in any High-Risk Application. You warrant that You will not use, or knowingly permit any use of, any Software or Services in any High-Risk Application. You agree to indemnify, defend, and hold DDN harmless against any claim, action, loss, liability, or damage of any kind that DDN incurs in connection with Your breach of this warranty.
11.8. Disputes. This EULA shall be governed, construed and enforced in accordance with the laws of the United States of America and of the State of California, excluding that body of laws known as conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes arising out of or relating to this EULA will be exclusively resolved in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”) under confidential binding arbitration held in Santa Clara County, California. To the fullest extent permitted by applicable law, no arbitration under this EULA will be joined to an arbitration involving any other party subject to this EULA, whether through class arbitration proceedings or otherwise. Any litigation relating to this EULA shall be subject to the jurisdiction of the Federal Courts of the Northern District of California and the state courts of the State of California, with venue lying in Santa Clara County, California. The cost and expense of arbitration will initially be shared equally by the parties to the arbitration, subject to an award to the prevailing party pursuant to Section 11.5. The decision or award of the arbitrator will be final and binding upon the parties, and to the same extent and to the same degree as if the matter had been adjudicated by a court of competent jurisdiction and will be enforceable under the Federal Arbitration Act. If required by DDN’s agreement with a third party licensor or a Third Party Vendor, DDN’s licensor or Third Party Vendor or Third Party Service Provider shall be a direct and intended third party beneficiary of this EULA and may enforce it directly against You, along with any additional applicable terms and conditions (including but not limited to the Service Terms, which may be enforced by the Service Provider against You).
11.9. Assignment. You shall not assign or otherwise transfer the Software or use of the Services (except as specifically set forth in this EULA), or this EULA, or any rights, liabilities, obligations or duties under this EULA, to anyone (including any parent, subsidiaries, affiliated entities or third parties) without DDN’s prior written consent, which consent shall not be unreasonably withheld. For purposes of this Section 11.9, if You are not a publicly traded entity, a change in the persons or entities that control fifty percent (50%) or more of Your equity securities or voting interest shall be considered an assignment. DDN shall have the right to assign this EULA or delegate its duties under this EULA.
11.10. English Language. This EULA has been prepared in the English language and the English language shall control its interpretation.
11.11. Limitation on Actions. Any cause of action by You against DDN with respect to this EULA must be commenced within one (1) year after the discovery thereof or it shall be barred, unless otherwise prohibited by law.
11.12. Force Majeure. Except for the parties’ obligations to make payments, neither party shall be responsible for delay or failure in performance caused by or related to causes beyond its reasonable control, including but not limited to any government act, law, regulation, order or decree; by communication line or power failures beyond its control, or by fire, flood or other natural disasters or by wars, riots, pandemics, etc. Further, any such delay or failure due to a force majeure event will not be a breach of this EULA.
If You have any questions about this EULA or the Software or Services, or if You want to contact DDN for any reason, please email support@ddn.com.
Last updated: July 18, 2025
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