Terms of Service – Software EULA
These Terms of Service (the “Terms”) set out the conditions under which you may use the Nexsan storage system, Nexsan website, and services (collectively referred to as the “Nexsan Service”). By using the Nexsan Service, or accessing the website, you agree to these Terms, you represent that you are at least 18 years old and will comply with the requirements stated herein. If you do not agree to these Terms, you may not use the Service. If you violate any of these Terms, we may terminate your access and ability to access or use the Nexsan Service at any time without notice.
TERMS & CONDITIONS OF USE
You may only use the Nexsan Service for its own internal business or personal purposes and in compliance with applicable law.
The data you store in the Nexsan storage system and transmit or receive via the Nexsan Service is not visible to, or accessible by Nexsan; you, and the other users with whom you share data, are solely responsible complying with all laws regarding the possession, ownership, use and control of the data, which may be protected by United States and international laws and treaties. You may not alter, modify or otherwise interfere with the use of the Nexsan Service by another user or alter, modify, obscure or interfere with the trademarks or ownership identification contained on the Nexsan website.
You further agree that you will not use the Nexsan Service made available to engage in illegal or improper acts, including but not limited to:
1. violating any applicable law; 2. annoying, threatening or invading the privacy of any other person or entity; 3. attempting to interfere with, or improperly use or access, the Nexsan website, network or Nexsan Service or the network or website of any other person or entity; or 4. allowing any other person or entity access to the Nexsan Service for any of the foregoing purposes.
MODIFICATIONS AND TERMINATION OF SERVICE
Nexsan reserves the right to modify or discontinue the Service for any reason, as well as, to restrict or terminate your use of the Service for a violation of these Terms. We will give you as much notice of any such action as is practicable. Any failure by us to enforce any right or provision of these Terms in a particular instance shall not constitute a waiver of the right to do so in any other instance.
DISCLAIMER OF WARRANTIES
NEXSAN IS NOT RESPONSIBLE FOR THE NATURE OR ACCURACY OF ANY DATA STORED OR TRANSMITTED VIA THE NEXSAN SERVICE AND ANY USE OF, OR RELIANCE UPON, THE NEXSAN SERVICE IS “AS-IS” AND AT YOUR OWN RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEXSAN DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DO NOT WARRANT THE WEBSITE, NEXSAN SERVICE OR NEXSAN STORAGE UNIT WILL BE SUITABLE FOR YOUR INTENDED NEEDS, UNINTERRUPTED, ERROR-FREE OR ACCURATE.
WE ASSUME NO LIABILITY, AND DISCLAIM ALL RESPONSIBILITY, FOR; 1. PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE RESULTING FROM YOUR USE OF, OR RELIANCE UPON, THE SERVICES OR CONTENT; 2. UNAUTHORIZED ACCESS TO OUR SYSTEM, SERVERS OR NETWORK (INCLUDING ANY AND ALL PERSONAL INFORMATION STORED THEREIN); AND 3. ANY VIRUSES, WORMS, TROJAN HORSES OR OTHER MALICIOUS CODE CONTAINED IN ANY DATA STORED ON A NEXSAN STORAGE UNIT OR TRANSMITTED VIA THE NEXSAN SERVICES BY ANOTHER USER OR ANY THIRD PARTY.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEXSAN, ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND SUPPLIERS WILL NOT BE LIABLE TO ANY PARTY, UNDER ANY THEORY OF LIABILITY (WHETHER STATUTORY, CONTRACT, TORT, OR OTHERWISE) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, NOR FOR ANY DAMAGES FOR LOST REVENUES, LOST PROFITS, LOST GOODWILL OR LOST USE OF DATA, EVEN IF NEXSAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR KNEW OR SHOULD HAVE KNOWN OF SUCH POSSIBLE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU. IN THOSE JURISDICTIONS, NEXSAN’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWABLE BY APPLICABLE LAW.
You agree that you are responsible for all use of the Nexsan Service via your account, whether by you or any other person or entity that you allow or authorize to access or use your account. You agree to notify anyone you allow or authorize to access or use your account of these Terms and obtain their agreement to comply with the Terms.
You agree to indemnify, defend and hold harmless Nexsan (including its officers, directors, employees, shareholders and authorized contractors and agents) from any and all costs, losses, demands, disputes, legal actions and damages of any kind (including reasonable attorneys’ fees and costs of experts and consultants) arising from claims by any third party connected with your use, or that of anyone you allow or authorize to access or use your account, of the Nexsan Service, or your, or their, violation of any applicable law or these Terms.
COMPLIANCE WITH DMCA
Nexsan complies with the requirements of the Digital Millennium Copyright Act (17 USC 512). If you believe any of the content infringes your copyright(s), you should notify us of the claimed infringement and provide us with sufficient information to be able to identify the content at issue and take corrective action. At a minimum, you should:
1. identify the copyrighted work you claim have been infringed. If there are multiple works covered in the same notice, you should provide a representative list of those works; 2. identify the content that you claim is infringing with sufficient information to enable us to locate the material; 3. provide us with sufficient information to contact you, including a physical address, telephone number, facsimile number and email address, if available; 4. a statement by you, under penalty of perjury, that you are the copyright owner or are authorized to act on the owner’s behalf, and that the information provided in the notice is accurate; 5. a statement by you that you have a good faith belief that the use about which you are complaining is not authorized by the copyright owner, the owner’s authorized agent or otherwise allowed by applicable law; and 6. your physical or electronic signature.
All notices should be sent to Nexsan’s designated agent as follows:
Nexsan, Inc. ATTN: DMCA Compliance Agent, 900 E. Hamilton Ave. Suite 230, Campbell, CA 95008. Email: email@example.com
Do not send notices or questions that are not related to copyright infringement to our designated agent.
Under no circumstances will Nexsan be liable for any failure or delay in performance due to acts beyond its reasonable control, including without limitation, telecommunications errors or failures, equipment failures, strikes, war, civil unrest, natural disasters, orders of governmental, judicial or regulatory bodies, acts of God, or failure of performance by third parties.
In the event a court of competent jurisdiction determines any provision of these Terms is invalid or unenforceable, the remaining provisions shall be valid and enforced to the fullest extent possible.
CHOICE OF LAW AND VENUE
These Terms shall be governed by the laws of the State of California without regard to its conflict of laws principles. You further agree that any legal actions may only be brought in the state or Federal courts serving Santa Clara County, California and that you submit to the personal jurisdiction of such courts.
TO CONTACT US
END USER SOFTWARE LICENSE AGREEMENT
BY USE OF THE NEXSAN FIRMWARE, DESKTOP SOFTWARE, AND/OR THE NEXSAN MOBILE APPLICATION, YOU AGREE TO THE FOLLOWING PROVISIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE FIRMWARE, DESKTOP SOFTWARE OR MOBILE APPLICATION.
This is a license agreement and not an agreement for sale. Nexsan, Inc. (Nexsan), 900 E. Hamilton Ave. Suite 230, Campbell, CA 95008, hereby licenses this Licensed Software to you under the following terms and conditions.
1. The term “Licensed Software” means, as the context and circumstances require, the firmware included with the Nexsan storage unit, as well as the desktop software and mobile application for accessing and using the Nexsan storage unit, as well as any related Documentation; Licensed Software also includes any updates, upgrades, modifications or replacements to the firmware, software or Documentation. “Documentation” means the information related to the operation and use of the Licensed Software, whether included with the Nexsan storage unit or available electronically (e.g., via the Nexsan website or accessible through the software or mobile application.
2. LICENSE RIGHTS GRANTED. The rights granted in this License Agreement to you are the non-exclusive rights to:
a. Use the Licensed Software only in accordance with the terms of this End User Software License Agreement (“EULA”), the documentation and applicable law;
b. Use the Licensed Software on any number of computers or mobile devices accessing one or more Nexsan storage units; and
c. Make a back-up copy of the Licensed Software solely for archival or disaster recovery purposes, provided all copyright notices and proprietary, restricted, or limited rights legends are reproduced.
d. Nexsan, or its suppliers, retain ownership of the Licensed Software and all rights therein, including, without limitation, all intellectual property rights and copyrights. Except for those rights specifically granted in this EULA, no other rights in the Licensed Software and Documentation are granted to you.
3. LICENSE RESTRICTIONS. You may not:
a. Copy, modify, adapt, translate or create derivative works in the Licensed Software, reverse compile or reverse assemble the object code into source code (except to the extent specifically permitted by applicable law), or in any other way to attempt to discover the source code for the Licensed Software. The Licensed Software in object code form is a trade secret of Nexsan. You agree to preserve the Licensed Software in confidence and will not disclose it to any third parties. In the event the source code becomes known to you in any manner, you agree to preserve such source code in confidence and will not disclose it to any third parties without Nexsan’s express, prior written permission.;
b. Sell, lease, loan, license or sublicense the Licensed Software or use the Licensed Software to run or host a commercial enterprise including, without limitation, a third party service bureau, application service provider or other endeavor; or
c. Use the Licensed Software in violation of any applicable law.
a. With respect to firmware only, Nexsan will perform updates (“push updates”) so long as the Nexsan storage unit is connected to a valid user account and is accessible via the Internet. You are hereby advised that hardware manufacturers routinely upgrade and change their products over time. As a result, older hardware, such as chipsets, other components, and certain software (whether those of Nexsan or third parties) may be incapable of operating new versions of the firmware or other parts of the License Software. Therefore, Nexsan does not guarantee that any such updates will be compatible with or operate for any particular amount of time beyond the warranty period for the Licensed Software generally, or at all, depending on the age and underlying hardware configuration of the particular Nexsan storage unit.
EXCEPT AS EXPRESSLY STATED IN THIS EULA, NEXSAN DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND STATEMENTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, REGARDING THE LICENSED SOFTWARE, ITS PERFORMANCE OR OTHERWISE RELATED TO THIS AGREEMENT. NEXSAN DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL NEXSAN, ITS SUPPLIERS OR ITS RESELLERS BE LIABLE TO ANYONE OTHER THAN THE ORIGINAL PURCHASER (OR ORIGINAL REGISTERED OWNER, AS APPLICABLE) OF THE NEXSAN STORAGE UNIT ASSOCIATED WITH THE LICENSED SOFTWARE NOR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES EVEN IF NEXSAN, ITS SUPPLIERS OR RESELLERS ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF THE USE OR OPERATION OF THE PRODUCTS, DELAYS IN DELIVERY OR REPAIR, LOSS OF USE OF THE PRODUCTS, OR DAMAGE TO ANY DATA OR OTHER PROPERTY OF LICENSEE. IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY FOR ALL OTHER DAMAGES FOR WHICH LIABILITY IS NOT, OR CANNOT, BE DISCLAIMED OR LIMITED, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE NEXSAN STORAGE UNIT BY THE ORIGINAL PURCHASER. YOU ACKNOWLEDGE AND AGREE THAT: (A) THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US; (B) THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (C) THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS EULA ARE FAIR AND REASONABLE IN RELATION TO THE BENEFITS RECEIVED BY EACH OF US.
6. You agree that the Licensed Software will not be given, sold, leased, or in any way made available to any person, business, entity, governmental unit or government in, or of, any country which the United States Government, through the Department of Commerce or any other department, has made prohibited by law. You will not knowingly export or transfer, whether directly or indirectly, the Licensed Software to anyone, or any entity, outside the country of delivery without first obtaining a license or verifying that a license has been obtained from the United States Department of Commerce or any other applicable agency or department of the United States Government, as may be required.
7. If the Licensed Software is provided to the U.S. Government, it is done so strictly under the terms and conditions of this EULA and includes only those rights customarily provided to the public. This customary commercial license is provided in accordance with FAR 12.212 (Computer Software) and (for Department of Defense purchases) DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this EULA, it must negotiate with Nexsan to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum to this EULA specifically conveying such rights must be included in any contract between the parties.
8. In the event any provision of this EULA is deemed unenforceable or invalid, such provision will be modified so as to make it valid and enforceable, and as so modified the entire agreement will remain in force.
9. This EULA is effective until terminated. It may be terminated by destroying the Nexsan storage unit or the Licensed Software and backup copy, and/or deleting the mobile application, as applicable. It will terminate automatically if you fail to comply with any of the terms of this EULA, and on any such termination you will destroy the Licensed Software and backup copies and delete the mobile application from all devices onto which it has been downloaded.
10. This License is governed by the laws of the United States and the State of California, without regard to conflict of law principles. The state and federal courts serving Santa Clara County, California, USA, shall have exclusive jurisdiction to resolve all disputes regarding the terms of this EULA. The United Nations Convention for the International Sale of Goods shall not apply hereto.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; YOU FURTHER AGREE IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN AND BY ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Nexsan retains all rights not expressly granted. Nothing in this License Agreement constitutes a waiver of Nexsan’s rights under United States Copyright laws or any other federal, state or international law or treaty.
Service & Tech Support
To obtain service, contact Nexsan Technical Support or a Nexsan Authorized Service Provider. Available service options depend on the country in which service is requested, and service may be restricted to the original country of sale. Shipping charges may apply. Warranty benefits are in addition to rights provided under local consumer laws.
Nexsan provides technical support to customers with active maintenance and support agreements.