Software Maintenance Agreement

This document and any accompanying Software Maintenance Certificate (the “Certificate”) or other proof of purchase is a legal agreement (the “Software Maintenance Agreement” or “SMA” ) between the end user (the “Licensee”) named on the face of the Certificate and Data Storage Group, Inc., d.b.a. DATASTOR™ and/or its subsidiaries (“DATASTOR”). This Software Maintenance Agreement and the rights granted herein are only effective as to end users who have a valid license pursuant to a DATASTOR End User License Agreement (the “EULA”) for the underlying DATASTOR Shield™ software product(s) (the “Software”) for which this software maintenance program will be provided.  Please read this Software Maintenance Agreement carefully. 

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IF LICENSEE DOES NOT AGREE TO THESE TERMS, THEN DATASTOR IS UNABLE TO PROVIDE SUPPORT FOR THE SOFTWARE MAINTENANCE PROGRAM TO LICENSEE.  RECEIPT OF SUPPORT INDICATES LICENSEE’S AGREEMENT TO THESE TERMS. 

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Should you have any questions regarding this Software Maintenance Agreement, or wish to contact DATASTOR, you may write to: Data Storage Group, Inc., Attention:  Legal Services Department, PO Box 579, Mead, CO 80542. 

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SOFTWARE MAINTENANCE OVERVIEW:  DATASTOR has designed and built the DATASTOR Shield™ software product for protecting and recovering your business-critical data.  Our primary business focus is helping businesses securely backup, archive and replicate their data in the event that restoring their data becomes necessary because of a natural or man-made disaster. We make every effort to provide the best software and support needed to protect your business data, within the terms of this Software Maintenance Agreement.  We also offer fully managed Hybrid Cloud Backup Services for additional assistance with managing your backups, DR or other system issues that go beyond the scope of this Software Maintenance Agreement. 

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DATASTOR™ includes a software maintenance subscription with each Software purchase (the “Software Maintenance Program” during the “Initial Subscription Period”).  The first year of Software Maintenance is included with the initial software purchase of DATASTOR Shield™ Enterprise software. The first three years of Software Maintenance is included with the initial software purchase of DATASTOR Shield™ Professional ("Server" or "RDX") software.  Other Business Class software, including OEM software bundles, are provided with 30-days Software Maintenance from the initial software purchase or download date.

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For Enterprise Software licensee, the second (and any subsequent) year Software Maintenance must be renewed on or before the subscription end date, which is the first anniversary date of the initial software purchase.  Enterprise Software Maintenance may be purchased in one-year increments.  To avoid interruptions and additional fees, the Software Maintenance must be renewed before the subscription end date.   A Software Maintenance Subscription is required for each Enterprise Software license. The Software Maintenance Subscription fee is based on the number of computer systems protected and backup capacity managed by the Software or as a flat annual fee for Unlimited licensees.  DATASTOR reserves the right to upgrade a usage based Software Maintenance Subscription to an Unlimited Subscription.

 

​ The Software Maintenance Subscription end date for additional remote computer deployments on the same Archive Manager will be co-termed with the anniversary date for the original Software purchase, so that the subscription end date for all computers managed by the same Archive Manager server is the same. 

 

DATASTOR requires that all Business Class software (Pro Server and Pro Server for RDX) users maintain an active Software Maintenance Subscription. The Software Maintenance Subscription term must be renewed on or before the initial term expires, which is included with the original purchase.  This subscription includes extended licensing rights such as software upgrade rights, license mobility, critical software updates and patches and access to technical assistance related to the software.

 

After the Initial Software Maintenance Period no license support will be provided without a Software Maintenance Subscription. During the Initial Subscription Period, Software Maintenance may be renewed to extend the subscription end date. Software Maintenance may be renewed thereafter to further extend the subscription end date.

 

If the Software is used for active backups or for maintaining archives of the data that would require use of the Software for restore and recovery, then a Software Maintenance subscription is required.  If the software maintenance subscription is cancelled, then all data should be moved to a new solution before the expiry date.

 

Without a software maintenance subscription, the Software license is revoked and cannot be transferred, reinstalled or re-activated.  The Software cannot be updated or upgraded.  No technical assistance will be provided, including access to support staff in case of an emergency or other support need, ie. a virus or malware attack. 

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This is a business-class software solution, and all users are required to maintain an active Software Maintenance Subscription by renewing their subscription with the Company to avoid interruptions of use.  The Company reserves the right to revoke any license for non-payment.

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SOFTWARE MAINTENANCE PROGRAM:  Commencing on the subscription start date set forth on the face of the Certificate or date software is downloaded, DATASTOR will provide to Licensee the Software Maintenance listed on the face of the Certificate during the Software Maintenance Subscription Period, within the DATASTOR region in which the Software is licensed for use as indicated in the EULA.  This Software Maintenance Agreement applies only to software manufactured by or for DATASTOR that can be identified by the DATASTOR trademark, trade name, or DATASTOR logo affixed to them.  Any support for third party hardware or software, including third-party software installed by DATASTOR or sold along with the Software, is provided by the hardware or software vendor, not DATASTOR.  DATASTOR does not warrant or support any products that are not DATASTOR products. This software maintenance program is provided under the terms and conditions listed below, until the end date set forth on the face of the Certificate or otherwise defined herein. 

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Software Maintenance provided under this Agreement includes: 

• Delivery of software hot-fixes, patches, updates and product enhancements

• Software license reactivation

• Software license mobility to new hardware

• Access to technical assistance provided via our support portal

• Researching and responding to questions relating to the Software

• Responding to implementation questions relating to the Software

• Analyzing and duplicating program defects with the Software

• Access to the DATASTOR™ technical support website / KB articles

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Software Maintenance under this Agreement DO NOT include:

• Providing Software bug fixes and patches below maintained versions

• Providing defect correction below maintained versions

• Installing or maintaining any third-party software

• Providing programming assistance

• Providing network administration or other IT services

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DATASTOR shall not be responsible for issues unrelated to the Software. This includes, without limitation, any network performance issues from the provider to Licensee’s location, any internal network performance issues within Licensee’s internal network, or any hardware or software issues on Licensee’s local network. 

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Conditions for Providing Software Maintenance.  DATASTOR obligation to provide Software Maintenance is conditioned upon the following situations: (a) Licensee makes reasonable efforts to solve the problem after consulting with DATASTOR; (b) Licensee provides DATASTOR with sufficient information and resources to correct the problem via either telephone technical assistance or through the DATASTOR technical website, as well as access to the personnel, hardware, and any software involved in discovering the problem; (c) Licensee promptly installs all updates, bug fixes and patches; and (d) Licensee procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software. 

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Exclusions from Software Maintenance.  DATASTOR is not obligated to provide Software Maintenance in the following situations: (a) the Software has been changed, modified, or damaged (except under the control of DATASTOR); (b) the problem is caused by Licensee's negligence, hardware malfunction or other causes beyond the reasonable control of DATASTOR; (c) the problem is traced to third party software not licensed through DATASTOR; (d) Licensee has not installed and implemented updates, bug fixes and patches so that the Software is a version supported by DATASTOR; or (e) Licensee has not paid fees when due. 

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Termination of Agreement.  DATASTOR reserves the right to discontinue Software Maintenance should DATASTOR, in its sole discretion, determine that continued maintenance for the Software is no longer commercially practicable.  DATASTOR will give Licensee at least three (3) months prior written notice of any such discontinuance of Software Maintenance and will refund any Subscription fees Licensee may have prepaid with respect to the Software.  DATASTOR shall have no obligation to support or maintain any version of the Software that is not the current version of the Software and operating system or the immediately preceding version of the Software for a period of six (6) months after it is first suspended. 

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Lapsed Software Maintenance Subscription.  In the event the Software Maintenance Subscription has lapsed the following terms and conditions will apply: 

• Reinstatement of Software Maintenance Subscription is subject to DATASTOR discretionary approval

• Sales orders for add-on Software licenses will not be accepted

•  License is subject to being revoked for non-payment of Software Maintenance Subscription

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Software Maintenance Warranty.  DATASTOR warrants, for a period of thirty (30) days from the date of performance of software maintenance under this  Agreement, that such software maintenance will be performed in a manner consistent with generally accepted industry standards.  For software maintenance not performed as warranted in this provision and provided Licensee has reported such non-conformance to DATASTOR within thirty (30) days of performance of such non-conforming software maintenance, DATASTOR will, at its discretion, either correct any nonconforming software maintenance or refund the relevant fees paid for the nonconforming software maintenance.  THIS IS LICENSEE'S EXCLUSIVE REMEDY AND DATASTOR’S SOLE LIABILITY ARISING IN CONNECTION WITH THE SOFTWARE MAINTENANCE WARRANTY DESCRIBED IN THIS SECTION. 

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Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL DATASTOR BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THE PROVISION OF SOFTWARE MAINTENANCE, EVEN IF THE PARTY, ITS RESELLERS, SUPPLIERS OR ITS AGENTS HAS BEEN TOLD SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL DATASTOR’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE MAINTENANCE SUBSCRIPTION.  NOTHING IN THIS  AGREEMENT SHALL EXCLUDE OR LIMIT DATASTOR’S LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. 

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INTEGRATION.  This Software Maintenance Agreement, as supplemented by any relevant terms in the EULA not otherwise defined herein, constitutes the entire agreement between this parties pertaining to the subject matter hereof, and except as otherwise agreed upon in writing by the parties, supersedes any and all prior written or oral agreement with respect to such subject matter.