End User License Agreement (EULA)
Our services are delivered on a monthly contract with 1 months notice required to terminate services and subscriptions. All services and subscriptions are charged in United States Dollars (USD). Clusterlogics is a Canadian corporation, registered in Ontario, Canada.
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT
hereto (collectively, the “Agreement”) is entered into by and between Bacula4Hosts Inc – DBA Clusterlogics., an Ontario, Canada corporation (“Clusterlogics”), and (“COMPANY”), as of (the “Effective Date”). In consideration of the mutual covenants and conditions contained herein, the parties agree as follows:
1. DEFINITIONS. The following definitions apply throughout this Agreement:
1.1 “Documentation” means Clusterlogics’s published user manuals relating to the Software as of the Effective Date or as it relates to any Modification or Major Release as of the date of delivery of each Modification or Major Release,
1.2 “Error” means any failure of the Software to operate in conformance with the Documentation in any material respect.
1.3 “Maintenance” shall means the services provided by Clusterlogics to the Company.
1.4 “Modification” means any revisions, enhancements, bug fixes, patches, error resolutions and all other changes to the Software required to insure that the Software operates in conformance with the Documentation and Specifications.
1.5 “Order” means the online purchase and subscription by the company to purchase and utilize licenses of the Software or to purchase Maintenance under this Agreement.
1.6 “Production” means Company’s use of the Software or Company’s customers (or potential customers) through associated services.
1.8 “Software” means the all software modules provided by Clusterlogics and any Major Releases, Modifications, interim releases, bug fixes and patches applicable to such software modules.
1.9 “Source Code” means the Software fully documented in its source code (i.e., human readable) form; (ii) a compiler, similar computer program or any other software which is necessary to convert the source code form into the object code form of the Software; and (iii) runtime software necessary to execute the source code form of the Software, including but not limited to interpreters and templates. Also for the purposes of this Agreement, “Commentary” shall include explanations, flow charts, schematics, algorithms, subroutine descriptions, class and object descriptions, memory and overlay maps, statements of principles of operations, architecture standards, data flow descriptions, class, base-class and sub-class descriptions, data structures and control logic of the software and any other documentation of the source code form of the Software, all in sufficient detail to enable a trained programmer through study of such materials to maintain and/or modify the software without undue experimentation.
2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Clusterlogics hereby grants to Company (and its successors and assigns as permitted herein) a perpetual, non-sublicensable, non-exclusive, non-transferable (except as otherwise expressly set forth herein), royalty-free, worldwide, enterprise-wide right and license, and to make as many backup (non-use other than for disaster testing and recovery purposes) copies as may be necessary, provided that Company shall keep a record of each such backup copy and the location of its storage, and shall provide any and all such records to Clusterlogics upon request. Company must reproduce and include any and all copyright, proprietary and any other notices that appear on the original Software and any media therefor on any copies made by Company.
3. RESTRICTIONS ON USE.
3.1 Proprietary Rights. Company acknowledges that the Software, its structure, organization and Source Code, and the Documentation are the property and constitute valuable trade secrets of Clusterlogics and its suppliers. Company agrees not to, for all Clusterlogics and Bacula Systems provided components and modules: (a) decompile or disassemble the Software, separate the Software into its component parts, or in any way attempt to reconstruct or discover any source code or algorithms of the Software by any means whatsoever; (b) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the Software; (c) modify or create any derivative works from the Software or any part thereof, except to the extent that the Software provides for user-modifiable components (d) except as otherwise permitted herein, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or any component thereof; (e) otherwise copy or use the Software for any purpose or in any manner not expressly permitted in this Agreement; or (f) knowingly permit or encourage any third party to do any of the foregoing. All assistance requested by Company for integration with existing or proposed Company systems or software shall be provided by Clusterlogics in accordance with Section 7. All rights in and to the Software and Documentation not expressly granted to Company in this Agreement are reserved by Clusterlogics and its suppliers.
3.2 Restrictions. Company shall use the Software only on the operating system specified by Clusterlogics as supported, however, that a breach of this sentence by Company shall not be considered a material breach.
3.3 Open Source. The Open Source components of the software are freely available to the Customer. The Customer retains ownership of all data stored and/or backed up using the Clusterlogics Software. ,Upon termination of the services contract and software licensing with Clusterlogics, the Customer may install the Open Source versions of Bacula. Upon termination, all Clusterlogics and Bacula Systems Software cannot be used and must be un-installed.
4. ORDERING AND DELIVERY. An Order will be binding on both parties the online ordering process is completed and the order is approved. Each Order shall includes the following: (a) the Software licensed or to which Support and Maintenance shall apply, and (b) the applicable fees. No additional or different terms in any purchase order or similar document shall modify the terms of this Agreement. For purposes of this Agreement, initial delivery of the Software and Documentation will be deemed to have occurred upon Clusterlogics providing Company with a password to access a web page, portal or has completed installation of the software at the Company facility.
5. LICENSE FEES AND PAYMENT. Company shall pay to Clusterlogics the license fees for the Software set forth during the order process. All fees hereunder exclude all applicable sales, use, value-added, property and other taxes, including duties and similar mandatory payments, and Company will be responsible for payment of all applicable sales such taxes, and any related penalties and interest, arising from the payment of such fees, the delivery or license of the Software, or the provision of any services to Company. All amounts under this Agreement are in U.S. dollars and payment must be made in such. Company will make all payments of amounts due under this Agreement to Clusterlogics free and clear of, and without reduction for, any withholding taxes. Clusterlogics reserves the right to charge interest on any overdue amounts at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid plus reasonable costs incurred in collection (including reasonable attorneys’ fees).
6. SOURCE CODE OWNERSHIP
6.1 .Derivative Works. Any and all derivative works to the Software which are created pursuant to this Agreement shall be owned by Clusterlogics, but Company shall have the same rights and licenses to such derivative works as Company has to the Software.
7.1 Maintenance Terms. Maintenance provided by Clusterlogics shall be pursuant to Clusterlogics’s standard maintenance terms
7.2 Maintenance Fees and Payment. Maintenance and support fees are included in the license subscription and will continue perpetually until termination of the software subscription occurs.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall remain in effect unless and until terminated as provided herein.
8.2 Termination. Company may terminate this Agreement at any time for any reason following thirty (30) days notice to Clusterlogics. Either party may terminate this Agreement for any reason with 30 days written notice.
8.2.a Termination of annual or fix term contracts require 30 days notice prior to contract termination. Contracts automatically renew for 1 year after the initial term
8.2.b Clusterlogics does not offer any partial finds credits upon termination. Any refunds granted accrue as Clusterlogics account credits
8.3 Effects of Termination. Upon termination of this Agreement for any reason, any amounts owed under this Agreement will be immediately due and payable all rights and licenses granted under this Agreement will immediately cease to exist, and Company must promptly discontinue all use of the Software and Documentation. Upon termination Company shall erase all copies of the Software and Documentation from Company’s computers, return to Clusterlogics or destroy all copies of the Software and Documentation on tangible media in Company’s possession or control and certify in writing to Clusterlogics that it has fully complied with these requirements.
THIS WEBSITE AND ALL CONTENT, MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THIS WEBSITE IS AT YOUR OWN RISK. Clusterlogics MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE FUNCTIONALITY OR USEFULNESS OF THIS WEBSITE OR ANY CONTENT. Clusterlogics DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Clusterlogics DISCLAIMS LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, OR LOST PROFITS, THAT MAY RESULT, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THIS WEBSITE OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO COMPUTER SYSTEMS, HARDWARE OR SOFTWARE, LOSS OF DATA, OR ANY OTHER PERFORMANCE FAILURES, OR ANY ERRORS, BUGS, VIRUSES OR OTHER DEFECTS THAT RESULT FROM OR ARE ASSOCIATED WITH USE OF THIS WEBSITE OR ANY CONTENT. Clusterlogics MAKES NO WARRANTY THAT, (I) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (IV) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THIS WEBSITE, ITS CONTENT, AND THE SERVER ON WHICH THE WEBSITE AND CONTENT ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL (INCLUDING CONTENT) DOWNLOADED OR OBTAINED THROUGH THE USE OF THIS WEBSITE IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL. INFORMATION CREATED BY THIRD PARTIES THAT YOU MAY ACCESS ON THIS WEBSITE OR THROUGH LINKS IS NOT ADOPTED OR ENDORSED BY Clusterlogics AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY. Clusterlogics MAKES NO WARRANTY THAT, (I) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (II) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (IV) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THIS WEBSITE, ITS CONTENT, AND THE SERVER ON WHICH THE WEBSITE AND CONTENT ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THIS WEBSITE IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL. INFORMATION CREATED BY THIRD PARTIES THAT YOU MAY ACCESS ON THIS WEBSITE OR THROUGH LINKS IS NOT ADOPTED OR ENDORSED BY Clusterlogics AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, Clusterlogics IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL,CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, EVEN IF Clusterlogics HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO (a) THE USE OF OR THE INABILITY TO USE THE WEBSITE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE WEBSITE; (c) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS, OR (d) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE. TO THE EXTENT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
This agreement and all claims relating to the relationship between the parties are governed by the Provincial laws and the laws of the Province of Ontario, Canada. without regard to choice of law provisions.
If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
If one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
Clusterlogics respects your privacy and is committed to maintaining the privacy and confidentiality of data we collect. The purpose of this Privacy Statement is to demonstrate our firm commitment to the privacy and protection of personal data to Clusterlogics and its affiliates. This Privacy Statement describes the ways we collect information and what is collected.
By visiting Clusterlogics websites or are otherwise providing your personal information to Clusterlogics via any other means, you are accepting and consenting to the practices described in this Privacy Statement
For purposes of this Privacy Statement, the term “visitor” includes visitors to our websites who are not yet customers, those who become customers, as well as those who do not become customers; whether you upload information to our websites, download it, or are merely visiting our websites.
- WHAT DO WE COLLECT AND WHERE?
The information we collect may include your personal information, such as your name, contact information, IP addresses, Live Chat Messages, phone conversation logs, product and service selections, and orders or other items that identify you individually.
We may collect information about you in the following manners:
- you may provide your personal information to us via chat, email or other written correspondence, telephone calls, web-based forms, or other means
You may visit our Websites in any of the following ways:
- By using your browser to navigate to our Websites
- By viewing an advertisement displayed on a third-party website that is served content by our web server
When you visit our Websites, our server logs your IP address (unique network addresses), the time and duration of your visit, and the time and duration of the pages on our website you view. If you arrive at our website by clicking a paid advertisement (including a paid search engine result) or via a link in an email, then we will capture information that tracks your visit from that link. If you arrive at our Website by clicking a non-paid source, such as link in a non-paid search engine result or a hyperlink on another website, we may capture information that tracks your visit from that source to the extent we can do so. We may also capture information about your computer systems, such as your browser type and operating system.
We will likely place a cookie on your hard drive during the web visit. A cookie is a unique alphanumeric identifier that we use to help us identify the number of unique visitors to our Website, whether or not those visitors are repeat visitors and the source of the visits. Cookies cannot be executed as code or used to deliver a virus. Other servers cannot read them, and personal information cannot be gathered from them. They are simply an identifier shared between you and us to allow us to improve the services we offer to you through our Website. If you do not wish cookies to be placed on your computer, then they can be disabled in your web browser. The option to do so is found in your browser’s “security settings” section. Permanently disabling cookies in your browser may hinder your use of our Website as well as other websites and interactive services.
We do not collect personal information about you as part of a web visit, but web visit information may be tied to other information (including personal information) we collect from you via chat, web forms, and the other means we describe in this Privacy Statement.
We may use third party web site analytic tools such as Google Analytics, Zoho CRM, Zoho PageSense or Zoho SalesIQ on our website that employ cookies to collect certain information concerning your use of our Services. However, you can disable cookies by changing your browser settings. Further information about the procedure to follow in order to disable cookies can be found on your Internet browser provider’s website via your help screen.
Hyperlinks to non-Clusterlogics Websites
We may provide links to third-party websites for your convenience and information. The privacy practices of those sites may differ from Clusterlogics practices and are not controlled by Clusterlogics and covered by this Privacy Statement. We do not make any representations about third-party websites. We encourage you to review their privacy policies before submitting your data.
Minor Children’s Online Privacy Protection
Our services are not designed for or directed to children under the age of 13, and we will not intentionally collect or maintain information about anyone under the age of 13.
- INFORMATION PROCESSING?
The Company is based in Canada. No matter where you are located, you consent to the processing and transferring of your information in and to Canada and other countries. The laws of Canada. and other countries governing data collection and use may not be as comprehensive or protective as the laws of the country where you live.
The laws in some jurisdictions require companies to tell you about the legal ground they rely on to use or disclose your personal data. To the extent those laws apply, our legal grounds are as follows:
- To honor our contractual commitments to you: Much of our processing of personal data is to meet our contractual obligations to our users, or to take steps at users’ request in anticipation of entering into a contract with them. For example, we handle personal data on this basis to create your account and provide our Services.
- Legitimate interests: In many cases, we handle personal data on the ground that it furthers our legitimate interests in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals: This includes:
- Providing a safe and enjoyable user experience;
- Customer service;
- Marketing, e.g. sending emails or other communications to let you know about new features;
- Protecting our users, personnel, and property;
- Analyzing and improving our business, e.g. collecting information about how you use our Services to optimize the design and placement of certain features;
- Processing job applications;
- Managing legal issues.
- Legal compliance: We need to use and disclose personal data in certain ways to comply with our legal obligations.
- To protect the vital interests of the individual or others: For example, we may collect or share personal data to help resolve an urgent medical situation.
- Consent: Where required by law, and in some other cases, we handle personal data on the basis of your implied or express consent.
- WHAT DO WE USE THIS INFORMATION FOR?
We may use your information to process your service requests, handle orders, deliver products and services, process payments, communicate with you about orders, provide access to secure areas of the Website, recommend merchandise and services that might be of interest to you, to personalize your visit to our Website, and to enable us to review develop and continually improve the products services and offers we provide online. We also use this information to prevent or detect fraud or abuses of our Website and to enable third parties to carry out technical, logistical or other functions on our behalf.
We use visitor information to send information about our company to visitors and to get in touch with them when necessary.
Financial Information and payment card details
We may ask visitors to enter credit card or account information to process orders for services placed with Clusterlogics. Financial information provided via our website or via our control panel/portal is transferred over a secure connection. We collect this information on a transaction-by-transaction basis and will not authorize the release of the information to anyone not directly involved in processing the transaction.
Credit card numbers are used only for processing payments and are not used for any other purposes.
We use the information you provide to us via telephone calls, chat, email, web forms and other communications to correspond with you about services you may be interested in purchasing. If you elect to purchase a service online using a web form, we will use the information to establish your account. The information you submit in writing, such as chat, email, and web form information is archived and may be tied to information that we collect about your web visits. Your telephone call may be recorded, and we may enter the information you provide via telephone into our systems to use for the purposes described in this paragraph.
- DISCLOSURE OF PERSONAL INFORMATION
Personal information we gather is for internal use only and will only authorize the release of this information to anyone outside Clusterlogics (except to third party service providers to Clusterlogics who perform functions on our behalf but in such event personal information will only be shared to the extent reasonably necessary to perform their functions and they will not be authorized to use it for any other function), unless you have consented to such disclosure. A user may request a copy of his/her personal information, or a modification to this data within guidelines from the General Data Protection Regulation (GDPR) through the Clusterlogics Accounts portal.
Clusterlogics as a Canadian company is also bound by the “Personal Information Protection and Electronic Documents Act” (PIPEDA). The act is intended to reassure the European Union there are adequate privacy compliance requirements to protect the personal information of European citizens.
Should you breach our terms and conditions or website terms, or if we are under a duty to disclose or share your data to comply with any legal obligation, we may disclose your information to a relevant authority. This may include exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction. In particular, we may release the information we collect to third parties when we believe it is appropriate to comply with the law, to enforce our legal rights, to protect the rights and safety of others, or to assist with industry efforts to control fraud, spam or other undesirable conduct.
We may release the information we collect to third parties, where the information is provided to enable such third party to provide services to us, provided that the third party has agreed to use at least the same level of privacy protections described in this Privacy Statement, and is permitted to use the information only for the purpose of providing services to us.
- OPTING OUT OF COMMUNICATIONS
Clusterlogics gives you an opportunity to chose to opt-out of personal data being disclosed to third parties for a purpose incompatible with the purpose for which it was originally collected (except for meeting applicable legal requirements or permitting third party service providers who perform functions on our behalf as described in section 3 of this Privacy Statement).
- SECURITY OF YOUR INFORMATION
Clusterlogics is committed to industry best practices approaches concerning security measures to prevent the loss, misuse, and alteration of the information in our possession. We use various security measures to protect the information we collect, as appropriate to the type of information, including encryption, firewalls, and access controls. We store information you provide to us on a computer system located in a controlled facility with limited access. Visitor textual information is encrypted during transmission; our company databases are accessible only by Clusterlogics employees, contractors, and agents on a need to know basis and who have entered into and are bound by a confidentiality and nondisclosure agreements with Clusterlogics.
- DATA INTEGRITY
Personal data we collect is relevant for the purposes for which it is to be used. Clusterlogics takes reasonable steps to ensure that data is reliable for its intended use, accurate, complete, and current.
- RIGHT TO ACCESS, REMOVE OR CORRECT YOUR PERSONAL INFORMATION
If you believe that any personal information we have about you is incorrect, or is, has been, or might be used inappropriately, please contact us, and we will take steps to correct or delete the information or restrict its use, as appropriate. The deletion of data will result in the termination of all services provided by Clusterlogics.
You may request an export or deletion of personal information retained by Clusterlogics at any time through the Clusterlogics Accounts Portal.
Clusterlogics utilizes the self-assessment approach to assure its compliance with its Privacy Statement. Clusterlogics regularly verifies that the privacy statement is accurate, comprehensive, prominently displayed, completely implemented and in conformity. Appropriate employee training is in place, and internal procedures for periodically conducting objective reviews of compliance are in place.
- INQUIRIES OR COMPLAINTS
If you have a question or complaint about this Privacy Statement or our information collection practices, please contact us. We will investigate the matter and are committed to resolving any privacy concerns that you may have.
Our business changes constantly and our Privacy Statement may also change from time to time. You should check our website frequently to see recent changes. However, we will never materially change our policies and practices to make them less protective of personal information collected in the past without your prior consent.