Ontrack® PowerControls™ End User Licence Agreement
PLEASE READ CAREFULLY BEFORE INSTALLING ANY SOFTWARE FROM THIS WEBSITE.
This licence (“Licence”) is a legal and binding agreement between you, being either an individual or a single entity (“you” or “your”) and KLDiscovery Ontrack, LLC, with address at 9023 Columbine Road, Eden Prairie, MN 55347 (USA) (“Ontrack” or “we”) for ONTRACK POWERCONTROLS computer software, including updates, upgrades, agents or add-on components (“Software”) and its associated user guides, installation guides or supplemental guides (“Documentation”).
IMPORTANT NOTICE TO ALL USERS:
BY INSTALLING THE SOFTWARE FROM THIS WEBSITE, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 18.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW.
1. LICENSE GRANT. Subject to the terms and conditions of this Licence, including the payment of applicable license fees, Ontrack grants you a non-exclusive, non-transferable, revocable and non-sublicensable license to access and use the Software and Documentation and any associated dongles, license keys or other enforcement mechanisms (“Authentication Component”) for your own internal business purposes.
The Software may only be used subject to the limitations set forth in this Licence and the Documentation. Such use, including but not limited to capacity and/or duration of license, shall be authorized pursuant to a document, quote or invoice (an “Order”) provided by Ontrack or its authorized resellers or distributors. Such Order shall incorporate all of the terms and conditions of this Licence and you may not exceed the authorized use without the payment of additional license fees.
2. LICENSE RESTRICTIONS. You shall not:
(a) remove, alter, cover or obfuscate any product identification, copyright notices, or other proprietary rights notice placed or embedded in the Software;
(b) sell, lease, rent, copy, or distribute this Software, Documentation and any associated Authentication Component to a third party except as expressly permitted herein;
(c) cause or permit reverse engineering, disassembly, decompilation or alteration of the Software except to the extent such restriction is expressly prohibited by applicable law;
(d) use a license of the Software with a perpetual term for performing consulting or technical services;
(e) sub-licence the Software to any third party, including your own customers; or
(f) use the Software for competitive analysis purposes. You may make one copy of the Software and Documentation solely for backup or archival purposes. You may not copy any Authentication Component. The Software shall not itself be hosted or made available via a hosted environment or service bureau without additional license fees and terms and conditions.
3. AUDIT RIGHTS. You shall maintain accurate records containing all necessary data required for verification of compliance with the terms of this Licence. Ontrack, or its designee, may, during normal business hours and upon reasonable prior notice to you, audit and analyze your records to verify compliance hereunder.
4. SUPPORT AND MAINTENANCE. Support and maintenance of the Software is subject to the terms of the PowerControls Maintenance Agreement and payment of additional fees.
5. FEES. The fees payable for the Licence to use the relevant version of the Software (“Fees”) are payable subject to the terms of the Order.
6. TERM. Your License to use the Software is effective for the period set out in the applicable Order. If you selected a time limited licence, at the end of this period, your License and your associated rights will expire automatically, unless you choose to renew your Licence.
7. TERMINATION. Your failure to comply with any term or condition of this Licence, including failure to pay the appropriate license fees, shall result in termination or suspension of your License to use the Software, Documentation and any associated Authentication Component(s). Upon termination, you shall discontinue all use of the Software, destroy the Software and Documentation, together with all copies thereof, and return any associated Authentication Component(s).
8. TRIAL LICENCE. If a trial version of the Software is obtained from Ontrack or its authorized resellers or distributors, the Software may be used for evaluation purposes only and is subject to the terms and conditions of this Licence. The trial version of the Software may be used as of the date of delivery until expiration or termination with or without cause by either party. Upon expiration or termination of the trial version of the Licence, all rights granted to you will terminate and you shall discontinue all use of the Software unless you purchase an authorized license pursuant a valid Order. If you choose not to purchase a license, the trial version of the Software must be destroyed, including all copies thereof.
9. DATA PROTECTION. Our processing of your personal data shall be governed by Ontrack’s Privacy Policy (available at https://www.ontrack.com/en-nz/legal/privacy-policy) and the terms set out below.
Ontrack collects personal data: (i) when you contact us via email, telephone or by any other means; and (ii) for the purposes of performing our obligations pursuant to this Licence. The purposes for which we process personal data include: (i) to provide the Software and Documentation to you; (ii) to obtain views on the performance of the Software, and (iii) with the appropriate legal permission, direct marketing.
We may disclose personal data to other entities of the KLDiscovery group (of which Ontrack forms part), a full list of which is provided in Ontrack’s Privacy Policy (together with the country where they are established which includes the United States), and to: (i) legal and regulatory authorities for the purposes of reporting any actual or suspected breach of applicable law or regulation; (ii) Ontrack’s accountants, auditors, lawyers and other outside professional advisors; and (iii) third party processors such as payment services providers, shipping/courier companies; technology suppliers, processors who provide compliance services. The purpose of disclosure to other entities is to fulfil Ontrack’s contractual obligations to you or for legitimate business purposes, in accordance with applicable law. Ontrack has implemented security measures described in Ontrack’s Privacy Policy and all entities that may receive the personal data are under a strict contractual obligation to implement security measures ensuring a high level of protection.
You shall at any time have the right to: (i) access and obtain information about the nature, processing or disclosure of you personal data; (ii) rectify your personal data; (iii) request, on legitimate grounds, erasure or restriction of processing of your personal data; (iv) object, on legitimate grounds, to the processing of your personal data; (v) request to have your personal data transferred to another controller; (vi) withdraw your consent to processing of personal data; and (vii) lodge complaints with the applicable data protection authority.
10. THIRD PARTY USE. If you license the Software for your internal business purposes but contract with a third party to perform services such as network management, monitoring, implementation, consulting or other outsourcing services for you (the “Consultant”), the Consultant may use the Software and Documentation licensed by you solely for your benefit in the performance of such contract, provided, however, that you ensure that the Consultant uses the Software, Documentation and/or Authentication Component in accordance with the terms of this Licence. You shall be liable to Ontrack for the acts and omissions of the Consultant in connection with their use of the Software, Documentation and/or Authentication Component. Notwithstanding the foregoing, a Consultant shall not use the Software, including any Authentication Component if applicable, for its own internal business use.
If you provide services to third parties, such as your customers, using the Software, you are required to obtain the commercial use version of the Software via the commercial license to authorize the provision of such services.
11. ASSIGNMENT. You may not assign or transfer the rights or obligations under this Licence to another party without the express written consent of Ontrack. Any attempt to assign this Licence without Ontrack’s consent shall be null and void.
12. COPYRIGHT/OWNERSHIP. You acknowledge and agree that all intellectual property rights in the Software, its source code, the Documentation and any associated Authentication Component belong to, or are licensed to, Ontrack. The rights granted to you in the Software are licensed (not sold) and you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence. Ontrack shall at all times retain all rights, title, interest, including intellectual property rights, in the Software, Documentation and any associated Authentication Components.
13. TRADEMARKS. “Ontrack”, “PowerControls” and other “Ontrack” brand and product names referred to herein are trademarks or registered trademarks of KLDiscovery Ontrack, LLC., in the United States and/or other countries. All other brand and product names are trademarks of their respective owners. This License to use the Software does not provide you with any right to use these trademarks to any purpose whatsoever.
14. IP CLAIMS. (a) Ontrack shall: (i) defend at its own expense any claim brought against you by any third party alleging that your use of the Software and/or the Documentation infringes any third party intellectual property rights (“IP Claim”); and (ii) pay costs and damages (subject to clause 18 below) awarded in final judgment or agreed in settlement of any IP Claim. The provisions of this clause 14 shall not apply unless you: (i) promptly notify Ontrack upon becoming aware of any actual or threatened IP Claim and provide full written particulars; (ii) make no comment or admission and take no action that may adversely affect Ontrack’s ability to defend or settle the IP Claim; (iii) provide all assistance reasonably required by Ontrack; and (iv) give Ontrack sole authority to defend or settle the IP Claim as Ontrack considers appropriate.
(b) If the Software is or is likely to become subject to an IP Claim, Ontrack shall use reasonable endeavours to either: (i) obtain the right for you to continue to use the Software and/or Documentation as applicable; or (ii) replace or modify any relevant software, documentation or materials used in the Software (or the part of it subject to the IP Claim) or the Documentation so that it becomes non-infringing.
(c) If Ontrack is unable to achieve either of the outcomes described above having used reasonable endeavours (including where the costs of doing so are commercially prohibitive), Ontrack may elect by written notification to you that: (i) your use of the Software shall immediately terminate; (ii) you shall promptly uninstall, delete and cease to use the Software; and (iii) Ontrack shall issue you a credit or a refund (at Ontrack’s option) for the Fees paid to Ontrack under this Licence in respect of the Software subject to a reasonable deduction to reflect the time elapsed where you have been able to use the Software prior to termination.
(d) Ontrack shall have no liability or obligations under this clause 14 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from: (i) any modification of the Software without Ontrack’s express written approval; (ii) installation or use of the Software or the Documentation otherwise than in accordance with this Licence or Ontrack’s instructions; (iii) installation or use of the Software in combination with any software, hardware or data that has not been supplied or expressly authorised by Ontrack; or (iv) any unlawful use made of the Software by Client.
The provisions of this clause 14 set out your sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim or any other actual or alleged infringement of any intellectual property rights.
15. INDEMNITY. You shall defend, indemnify and hold harmless Ontrack against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) your unauthorised use of the Software and/or Documentation; or (ii) any violation of this Licence.
16. EXPORT RESTRICTIONS. You agree to comply fully with all laws and regulations of the United States and other countries relating to the prohibition of sales of products and services to designated states or jurisdictions, individuals or companies (“Export Laws”) to assure that the Software, Documentation nor any associated Authentication Component are not: (1) exported, directly or indirectly, in violation of Export Laws; or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
17. WARRANTIES. THIS SOFTWARE, DOCUMENTATION AND ANY ASSOCIATED AUTHENTICATION COMPONENT IS PROVIDED TO YOU ON AN “AS-IS” BASIS. YOU ASSUME ALL RISKS WHEN INSTALLING OR USING THE SOFTWARE. THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. ONTRACK DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ONTRACK DOES NOT WARRANT THAT THE SOFTWARE IS NON-INFRINGING, THAT IT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE.
18. LIMITATION OF LIABILITY. ONTRACK SHALL NOT IN ANY CIRCUMSTANCES WHATEVER BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE LICENCE FOR:
(A) LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;
(B) BUSINESS INTERRUPTION;
(C) LOSS OF ANTICIPATED SAVINGS;
(D) LOSS OR CORRUPTION OF DATA OR INFORMATION;
(E) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; OR
(F) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
OTHER THAN THE LOSSES SET OUT BELOW, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS LICENCE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO: (i) IN CASES OF INTELLECTUAL PROPERTY INFRINGEMENT, A TOTAL OF $10,000; OR (ii) IN ANY OTHER CASE, A SUM EQUAL TO THE APPLICABLE LICENCE FEE YOU PAID.
NOTHING IN THIS LICENCE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE;
(B) FRAUD OR FRAUDULENT MISREPRESENTATION;
(C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
THIS LICENCE SETS OUT THE FULL EXTENT OF OUR OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE SOFTWARE AND DOCUMENTATION.
19. MISCELLANEOUS. This Licence is governed by THE LAWS OF THE STATE OF MINNESOTA and EACH PARTY HERETO SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA. Each party, on behalf of itself and its affiliates, to the fullest extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this Licence. The foregoing waiver applies to any action or legal proceeding, whether in contract, tort or otherwise. Each party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other party or its affiliates as a party in any such action or proceeding. This is the entire agreement between you and Ontrack, which supersedes any prior or subsequent agreement, including your purchase order terms, whether written or oral, relating to this subject matter.
We may amend the terms of this Licence at any time and publish such changes on our website. Where we make any material amendments, we shall notify you in advance of the implementation of such change. Your continued use of the Software and Documentation after implementation of such changes shall amount to your agreement to them.
The failure by us to enforce at any time any of the provisions in this Licence shall not be deemed a waiver of such provision, or any other provision, or our right thereafter to enforce any such provision in the future.
If any provision of this Licence is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Licence shall remain in full force and effect.
20. GOVERNMENT USE. The Software and Authentication Components include “commercial computer software” and related documentation within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, 12.212, and 27.405-3 and Defense Federal Acquisition Regulations Supplement (“DFARS”) 227.7202 and 252.2277014(a)(1). The Software and Authentication Components are proprietary to Ontrack and its third party licensors. You shall ensure that all users, including, but not limited to employees, personnel, representatives or agents of the U.S. Government, are permitted to use the Software and Authentication Components only as expressly authorized under this Licence. In accordance with FAR 12.212 and DFARS 227.7202, neither you nor any government agency or entity shall receive any ownership, license, or other rights in and to the Software and Authentication Components other than the commercial software license rights expressly set forth herein.
Contractor/manufacturer is KLDiscovery Ontrack, LLC., 9023 Columbine Road, Eden Prairie, MN 55347.
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