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NaviClouDR End-User License Agreement

Last Updated: August 24th, 2023

This End-User License Agreement (this "Agreement") is between the individual or entity accepting it (the "End User" or "you") and NaviClouDR Software Pte. Ltd. ("NaviClouDR"), and governs your acquisition and use of NaviClouDR's migration and disaster recovery software (the "NaviClouDR Software" or “Software”).

Please read this Agreement carefully before downloading, installing, or using the NaviClouDR Software. By downloading, installing, or using the Software, you are agreeing to be bound by the terms and conditions of this Agreement. This Agreement represents the entire agreement concerning the NaviClouDR Software between you and NaviClouDR and supersedes any prior understanding or agreement between the parties. If you do not agree to the terms of this Agreement, do not download, install, or use the Software.

Section 1. Definitions

"Cloud Platform" means a computing platform that hosts multiple virtual machines that operate using shared resources from a pool of computer servers. "Client" means a computer server that End User desires to migrate or protect to and operate on a Cloud Platform.

"Documentation" means the following documentation (in tangible, electronic or other form) that NaviClouDR makes generally available to End Users of the NaviClouDR Sofware: (i) NaviClouDR's user guide for the NaviClouDR Software, and (ii) NaviClouDR's written specification documents for the NaviClouDR Software.

"End User Data" means all of End User's information and data, including any software applications, application data, and Client information, transferred to NaviClouDR in connection with the use of the NaviClouDR Software.

"Error" means a material failure of the NaviClouDR Software to operate in accordance with the functional specifications for the NaviClouDR Software set forth in the applicable Documentation.

"Information" means, subject to the exceptions set forth in Section 8.3 below, all financial and technical information, data, designs, specifications, know-how, non-public marketing strategies, business and marketing plans, price lists, inventions, processes, software programs, firmware, source code, algorithms, and other technical and business information and all documents and materials, supplied in connection with this Agreement or the NaviClouDR Software, which at the time of disclosure is designated as confidential (or similar designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.

"Order Form" means any quote, purchase order, or similar document and/or written agreement, mutually executed by the parties, or by a Reseller on End User's behalf, that incorporates by reference this Agreement. Any pre-printed terms or conditions on an Order Form that conflict with this Agreement shall be null and void. This Agreement may be superseded only by a mutually signed amendment to this Agreement.

"Reseller" means an entity that resells or distributes to End Users the rights to the NaviClouDR Software and the Documentation subject to the terms and conditions of this Agreement.

"NaviClouDR Software" means NaviClouDR's cloud-migration solution, which includes a cloud migration hosted service (the "Hosted Service") and an application programming interface that permits access to the Hosted Service (the "API").

"Support Services" means any support and maintenance services purchased separately from this Agreement in connection with the NaviClouDR Software.

"Support Terms" means NaviClouDR's then-current support terms that govern Support Services, as set forth, if applicable, in an Order Form or other separate agreement.

"Term" shall commence on the earlier of the date this Agreement is accepted by End User or the start date set forth in an Order Form, and shall continue for the Term set forth in the Order Form or for as long as you use the NaviClouDR Software.

Section 2. Licenses

2.1 Grant of License. Subject to the terms and conditions of this Agreement, NaviClouDR grants to End User a time-based, non-transferable, nonexclusive license during the Term, without the right to sublicense, to:

2.1.1 use the NaviClouDR Software to transfer software applications from one or more Client to a Cloud Platform or from one Cloud Platform to another Cloud Platform, for the Term and subject to payment of the fees set forth in an Order Form;

2.1.2 integrate the NaviClouDR Software with other products and services through the use of the API; and

2.1.3 use any Documentation solely in connection with the use of the NaviClouDR Software in accordance with this Agreement and make a reasonable number of copies of the Documentation for such purpose.

Except as expressly set forth in this Section 2.1, End User shall have no right to use, install, reproduce or distribute the NaviClouDR Software or Documentation.

2.2 License Restrictions. Other than as expressly set forth herein, End User shall have no right to, (i) modify or otherwise prepare derivative works of the NaviClouDR Software or Documentation, or any portion thereof, (ii) rent, lease, loan, sublicense, sell or otherwise distribute the NaviClouDR Software or Documentation, or, (iii) except as expressly permitted by applicable law, reverse engineer or decompile the NaviClouDR Software, or otherwise attempt to derive or modify the source code of, or any processes, techniques, methods, specifications, protocols, algorithms, interfaces, data structures, or other information embodied or used in, the NaviClouDR Software.

2.3 Reservation of Rights. You shall have no rights with respect to the NaviClouDR Software or Documentation except as expressly set forth herein. All rights relating to the NaviClouDR Software and Documentation that are not expressly granted hereunder to End User are reserved and retained by NaviClouDR.

2.4 Feedback. You may provide feedback, suggestions, evaluations, or improvements (collectively, "Feedback") regarding or relating to the NaviClouDR Software. You hereby grant NaviClouDR a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit any Feedback without restriction in any manner now known or in the future conceived.

2.5 Edited Interfaces. You acknowledge that NaviClouDR has no control over your development of edited interfaces with respect to the use of the NaviClouDR Software, the operation of such edited interfaces, or the effect such edited interfaces will have on your systems. You acknowledge that you are solely responsible for any consequences of the operation of such edited interfaces and assume all risk associated with such development, use and operation, and you furthermore agree that NaviClouDR will have no responsibility and no liability to you for any loss or damage in any way caused or associated with the operation of such edited interfaces.

2.6 Open-Source Software Licenses. End User acknowledges that portions of the NaviClouDR Software are subject to additional licenses that you shall be obligated to obtain separately from this Agreement. The terms for the Open-Source Software License can also be obtained upon request submitted to support@navicloudr.com. The Open-Source Software shall not be subject to the terms and conditions herein. NaviClouDR provides no representations or warranties with respect to the Open-Source Software and all implied warranties are disclaimed, in accordance with the terms of the GPL and any other license or agreement that affects the Open-Source Software. In the event of any conflict between the terms herein and the GPL or any other applicable Open-Source Software license agreement ("Open-Source License Agreement"), the terms of the GPL or applicable Open-Source License Agreement shall control. Notwithstanding the foregoing, the GPL and other applicable Open-Source License Agreements apply only to the Open-Source Software and do not apply, in whole or part, to the remaining portions of the NaviClouDR Software. In no event shall End User have any right to access or obtain the source code for the remaining NaviClouDR Software.

2.7 End User Data. You represent and warrant that you own or have the right to use all End User Data that you provide to NaviClouDR in connection with the use of the NaviClouDR Software. You hereby grant to NaviClouDR a license to use any End User Data that you provide to NaviClouDR in connection with the use of the NaviClouDR Software solely for the purposes of providing the services as set forth in this Agreement. You acknowledge that End User Data and/or configuration may be affected as part of the services, and that NaviClouDR may install applications and other tools to the Client as part of the services. 

Section 3. Warranty

3.1 Warranty. NaviClouDR warrants to End User that during the Term, the NaviClouDR Software will be free of Errors. NaviClouDR's sole obligation for a breach of this warranty will be to use its commercially reasonable efforts to correct the Error identified in such notice, provided that if NaviClouDR is unable to correct any Emergency Error or High Severity Error within thirty (30) days of receiving such notice, End User will have the right to terminate this Agreement, any Order Form, any Support Terms and all other exhibits and amendments executed by the parties and attached to the Order Form for a refund of a pro-rated portion of any services fees and support and maintenance fees actually paid by End User for the remainder of the then-current Term.

3.2 Limitations. Notwithstanding the foregoing, the warranty in Section 3.1 and NaviClouDR's obligations set forth in Section 3.1 will not apply: (i) to the extent that an Error is due to causes that are external to the NaviClouDR Software or otherwise beyond NaviClouDR's reasonable control, including, without limitation, natural disasters, fire, smoke, water, earthquakes, lightening, electrical power fluctuations or failures, or hardware or software not provided by NaviClouDR; (ii) if the NaviClouDR Software has been misused and/or not used in compliance with the Documentation or this Agreement; (iii) if there has been a modification or attempted modification of the NaviClouDR Software other than by NaviClouDR; or (iv) if End User has refused or otherwise failed to implement corrections, updates, enhancements, new releases or other modifications provided by NaviClouDR.

3.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 3.1, NAVICLOUDR MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE NAVICLOUDR SOFTWARE, THE DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY NAVICLOUDR, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR DELAYS OR INTERRUPTION IN SERVICE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS SERVICES NOT UNDER THE CONTROL OF NAVICLOUDR. THE NAVICLOUDR SOFTWARE IS NOT WARRANTED TO OPERATE WITHOUT INTERRUPTION OR FAILURE. THE NAVICLOUDR SOFTWARE SHOULD ONLY BE USED IN SYSTEMS DESIGNED WITH APPROPRIATE REDUNDANCY, FAULT TOLERANCE AND BACK-UP FEATURES.

Section 4. Support

NaviClouDR provides paid Support Services for the NaviClouDR Software, pursuant to the Support Terms, for the period set forth in an Order Form and commencing on the date set forth in the Order Form.

Section 5. Limitations of Liability

5.1 Maximum Liability. To the maximum extent enforceable under applicable law, other than for payment of license and service fees pursuant to this Agreement, the entire liability of each party hereto and their respective affiliates to the other party and its affiliates for damages or other amounts arising out of or in connection with the NaviClouDR Software, the Documentation, any other products or services provided by NaviClouDR, the use of any of the foregoing or any other aspect of this Agreement shall not exceed the total amount actually paid by End User for the NaviClouDR Software and any other products and services provided under this Agreement in the twelve (12) month period immediately preceding the event giving rise to such claim.

5.2 Waiver of Consequential Damages. TO THE MAXIMUM EXTENT ENFORCEABLE IN ACCORDANCE WITH APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, OR ANY DAMAGES FOR LOST PROFITS OR REVENUE, LOST DATA OR LOST BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

5.3 Loss of Use or Data. IN ADDITION TO THE LIABILITY LIMITATIONS SET FORTH ABOVE, TO THE MAXIMUM EXTENT ENFORCEABLE IN ACCORDANCE WITH APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL NAVICLOUDR OR ITS AFFILIATES BE LIABLE TO END USER, ANY RESELLER, THEIR RESPECTIVE AFFILIATES OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIM, LOSS OR LIABILITY FOR INTERRUPTION IN THE OPERATION OF THE NAVICLOUDR SOFTWARE OR FOR ANY LOSS OF DATA THAT OCCURS AS A RESULT OF IN CONNECTION WITH THE USE OF THE NAVICLOUDR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM, LOSS OR LIABILITY WAS FORESEEABLE BY NAVICLOUDR OR NAVICLOUDR WAS INFORMED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR LIABILITY.

5.4 Disclaimers. THE LIMITATIONS IN THIS SECTION 5 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE PARTIES ACKNOWLEDGE THAT BUT FOR THE FOREGOING DISCLAIMER, THE FEES CHARGED FOR THE NAVICLOUDR SOFTWARE WOULD BE HIGHER AND NAVICLOUDR WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES, SO A PORTION OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO END USER. IN THE EVENT THAT IMPLIED WARRANTIES CANNOT BE EXCLUDED, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE NAVICLOUDR SOFTWARE. THIS AGREEMENT GIVES END USER SPECIFIC LEGAL RIGHTS. END USER MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.

Section 6. Third-Party Rights

6.1 Indemnification by NaviClouDR. Subject to this Section 6, NaviClouDR shall (i) defend End User from any claim asserted in a legal proceeding by a third party alleging that the then-current release of the NaviClouDR Software, in the form provided by NaviClouDR to End User and used in compliance with Section 2 and the Documentation, infringes such third party's copyright, trade secret, patent or other intellectual property rights (a "Claim") and (ii) pay all liabilities, damages, losses, expenses, claims, demands, suits, fines, and judgments finally awarded against End User associated with such Claim ("Damages"), or any amount agreed to by NaviClouDR in settlement of such Claim ("Settlement Payments"); provided that End User promptly notifies NaviClouDR of any such Claim in writing, NaviClouDR is given sole and exclusive control over the defense and settlement of such Claim, and End User provides all information and cooperation reasonably requested by NaviClouDR in connection with the defense and settlement of such Claim. If NaviClouDR assumes defense of the Claim, End User may retain its own counsel only at its own expense.

6.2 Fixes. If any portion of the NaviClouDR Software becomes, or in NaviClouDR's opinion is likely to become, the subject of a claim of infringement, NaviClouDR may, at its option, (i) procure for End User the right to continue using the NaviClouDR Software, (ii) replace or modify the NaviClouDR Software to make it non-infringing or reduce the likelihood of infringement, such that the replacement or modification provides substantially the functionality required of the NaviClouDR Software that is replaced or modified, or (iii) terminate this Agreement and, as NaviClouDR's sole liability and End User's sole remedy for such termination, refund to End User a pro-rated portion of any license fees and support and maintenance fees actually paid by End User hereunder for the remainder of the then-current term or scope of the license.

6.3 Indemnification by End User. End User will defend NaviClouDR against any claim, demand, suit or proceeding made or brought against NaviClouDR by a third party alleging that End User Date or End User's use of the NaviClouDR Software in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a "Claim Against NaviClouDR"), and will indemnify us from any damages, attorney fees and costs awarded against us as a result of, or for any amounts paid by us in settlement of, a Claim Against NaviClouDR, provided we promptly notify you of any such Claim Against NaviClouDR in writing, End User is given sole and exclusive control over the defense and settlement of such Claim Against NaviClouDR, and we provide all information and cooperation reasonably requested by you in connection with the defense and settlement of such Claim Against NaviClouDR. If End User assumes defense of the Claim, NaviClouDR may retain its own counsel only at its own expense.

6.4 Limitations. Notwithstanding any of the foregoing, NaviClouDR shall have no obligations under this Section 6 with respect to any Claim to the extent that the alleged infringement is based on or arises out of: (i) any third-party hardware, software, data or other materials not provided or recommended by NaviClouDR and used with the NaviClouDR Software; (ii) use of the NaviClouDR Software other than in accordance with this Agreement and the Documentation; (iii) modifications or additions to the NaviClouDR Software not made by NaviClouDR; or (iv) End User's continuation of an allegedly infringing activity after being notified thereof.

6.5 No Other Liabilities. This Section 6 states the entire liability of NaviClouDR with respect to any claims of infringement or misappropriation of intellectual property rights.

Section 7. Proprietary Rights

End User acknowledges that, other than Open Source Software, NaviClouDR has and shall retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the NaviClouDR Software and Documentation, including all modifications, improvements and additions thereto and all derivative rights therein.

End User acknowledges that NaviClouDR shall remain exclusive owner of any and all developments and designs made in the course of this Agreement by use of the NaviClouDR Software, and NaviClouDR shall own and retain all right, title, interest, and any intellectual property rights attached thereto.

End User grants to NaviClouDR a worldwide, limited-term license to host, copy, and transmit End User Data, and any non-NaviClouDR applications and programs provided by you, as necessary for NaviClouDR to provide the NaviClouDR Software and or support service in accordance with this Agreement. Subject to the foregoing limited license, NaviClouDR acquires no right, title or interest from you under this Agreement in or to End User Data.

Section 8. Confidentiality

8.1 NaviClouDR Information. Except as otherwise expressly provided in this Section 8.1, End User shall protect and keep confidential all NaviClouDR Information. End User shall use NaviClouDR Information only for the purposes contemplated by this Agreement. End User may disclose NaviClouDR Information only (i) as necessary for its use of the NaviClouDR Software in accordance with this Agreement, (ii) to End User's employees or third-party contractors who have agreed in writing to maintain such information in confidence; or (ii) if required to do so by subpoena, court order or legal process, provided that NaviClouDR is provided sufficient written notice to request a protective order.

8.2 End User Information. Right to Disclose. Except as otherwise expressly provided in this Section 8.2, NaviClouDR shall protect and keep confidential all End User Information and shall use End User Information only for the purposes contemplated in this Agreement and for purposes of improving and enhancing the NaviClouDR Software. NaviClouDR may disclose End User Information only (i) as necessary to support End User's use of the NaviClouDR Software in accordance with this Agreement, (ii) to NaviClouDR's employees or third-party contractors who have agreed in writing to maintain such information in confidence; or (iii) if required to do so by subpoena, court order or legal process, provided that End User is provided sufficient written notice to request a protective order.

8.3 Exceptions. Sections 8.1 and 8.2 shall not apply to Information of the disclosing party that (i) is or becomes generally available to the public other than through a wrongful act of the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a source that is entitled to disclose it to the receiving party; or (iii) is independently developed by the receiving party, its employees or third-party contractors without access to or use of the disclosing party's Information

8.4 NaviClouDR Software; Documentation. End User acknowledges that the NaviClouDR Software and Documentation constitute NaviClouDR Information.

Section 9. Duration, Termination and Fees

9.1 Duration. NaviClouDR shall provide the services and the license rights granted herein for the Term. End User and NaviClouDR may extend or renew the services upon written agreement.

9.2 Fees & Charges. End User shall pay all license fees, service fees and other charges set forth in an Order Form according to the terms of this Agreement. Any failure to pay such fees and charges shall constitute a material breach of this Agreement.

9.3 Termination for Breach. Either party shall be entitled to terminate this Agreement in the event the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days of being notified in writing of such breach.

9.4 Discontinued Use. Upon any expiration or termination of this Agreement or any Order Form, End User shall immediately (i) discontinue use of the NaviClouDR Software and Documentation and (ii) remove, delete and otherwise destroy all copies (electronic or otherwise) of the NaviClouDR Software and Documentation. Notwithstanding the foregoing, End User shall be permitted to use the NaviClouDR Software for the duration of any prepaid term, unless the termination is due to such End User's uncured breach of this Agreement or the relevant Order Form.

9.5 Effect of Termination. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party's obligations under this Agreement. Neither party shall be liable to the other party for damages of any kind solely as a result of terminating this Agreement, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.

9.6 Survival. Upon any expiration or termination of this Agreement, the rights and obligations of the parties shall terminate, except that Sections 2.2, 2.4, 3.3, 5, 6, 7, 8, 9.7, 9.8 and 10 shall survive such expiration or termination. End User's liability and obligation to pay any fees or other amounts that have accrued prior to such expiration or termination will also survive such expiration or termination.

Section 10. Miscellaneous

10.1 Governing Law and Jurisdiction. This Agreement will be governed by the laws of Singapore without regard to any rules governing conflicts of laws.

10.2 Independent Contractors. NaviClouDR and End User shall perform their obligations under this Agreement as independent contractors, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties.

10.3 Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and shall supersede any and all prior and contemporaneous communications, representations, agreements and/or undertakings, either verbal or written, between the parties in respect of the said subject matter.

10.4 Amendment. NaviClouDR reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, we will provide at least 30 (changes this) days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

10.5 Severability and Limitations of Actions. In the event that any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of this Agreement and its application to other persons shall not be affected thereby, and the remaining provisions of this Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law, and the parties agree in such event to substitute forthwith the invalid, unlawful or unenforceable provision by such effective provision as will most closely correspond with the legal and economic contents of the provision(s) so voided.

10.6 Waiver. The waiver by any party of a breach or default by the other party of any provision of this Agreement shall not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operated as a waiver of any such right or remedy.

10.7 Assignment. Neither party may assign its interest in this Agreement to a third party without the advance written consent of the other party, such consent not to be unreasonably withheld; provided, however, that no consent shall be required for any assignment by a party to the successor of all or substantially all of the assets of such party to which this Agreement relates (whether by merger, stock purchase, asset purchase or otherwise).

10.8 Force Majeure. Neither party shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, earthquakes, floods, or other acts of God or severe weather conditions, by war, terrorism or other violence or acts a public enemy, by strikes or other labor disputes, by laws, orders, proclamations, regulations, ordinances, demands, or requirements of any governmental authority, or by any other cause beyond the reasonable control of such party.

10.9 Notices. Any notice to be given under this Agreement shall be in writing and addressed to the party at the address set forth in the applicable Order Form. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal, or (iv) if sent by certified or registered mail, within five days of deposit in the mail.

10.10 NaviClouDR Trademarks. End User agrees to include the NaviClouDR logo and other identifying information on the NaviClouDR Software and any related marketing material, and NaviClouDR grants End User a limited, non-exclusive license during the Term to use NaviClouDR's logos and trademarks solely to promote and resell the NaviClouDR Software in accordance with the rights granted to and the restrictions upon End User hereunder. End User agrees to comply with NaviClouDR's standard usage guidelines for all NaviClouDR logos and trademarks. End User agrees to deliver to NaviClouDR copies of materials that include NaviClouDR logos or trademarks prior to distribution or release of such materials for NaviClouDR's approval. No materials that include logos or trademarks may be distributed or released by End User without NaviClouDR's prior written approval. End User agrees that it will not at any time now or in the future challenge or assist others in challenging the validity of the NaviClouDR Marks, or attempt to register confusingly similar trademarks, trade names, service marks, domain names or logos.