GENERAL EARLY ACCESS RELEASE (EAR)
TERMS AND CONDITIONS

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BY OPENING AN EARLY ACCESS RELEASE PACKAGE (hereinafter “EAR”, in context also may be referred as “Alpha”, “Beta”, “Preview” “Early release”, etc.), INSTALLING, PRESSING “AGREE”, OR “YES”, OR “ACCEPT”, OR USING THE EAR PRODUCT OR SERVICE, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THESE GENERAL EARLY ACCESS RELEASE TERMS AND CONDITIONS AS WELL AS NAKIVO END USER LICENSE AGREEMENT (EULA) PUBLICLY AVAILABLE AT https://www.nakivo.com/support/eula/. YOU ALSO ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED OUR PRODUCT PRIVACY POLICY www.nakivo.com/support/privacy-policy/. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, EULA OR OUR PRIVACY POLICY, DO NOT INSTALL OR USE THE PRODUCT OR SERVICE, PROMPTLY RETURN THE PRODUCT TO NAKIVO OR YOUR NAKIVO RESELLER. IF YOU REJECT THESE GENERAL EARLY ACCESS RELEASE TERMS AND CONDITIONS OR ANY ASSOCIATED AGREEMENTS, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.

While Early Access Release products and services are deemed suitable for licensing to end-users, herein stated reservations and limitations to end-user experience and warranties shall apply.

These General EAR Terms and Conditions supplement the EULA. All definitions, terms and conditions of EULA shall remain unchanged and in full force and effect except as amended by these General EAR Terms and Conditions.

1. Early Adoption Expectation

Early Access Release Products and Services contain cutting-edge features and functionality. Such features and functionality may not have been fully tested to be compatible with every end-user hardware and software configuration, data, as well as user expectation. Some features may lack maturity or stability to be relied upon. If you decide to access or use any of Early Access Release Products and/or Services, you do this entirely at your own risk. Furthermore, NAKIVO reserves the right to discontinue, revert, alter, change or redesign any feature or functionality of Early Access Release products and services without prior notice.

2. Reasonable Expectation of Defects

Due to Early Access Release products and services being deployed in a rapid expeditious manner, NAKIVO cannot warrant or guarantee absence of hidden defects, vulnerabilities, inefficiencies and incompatibilities of such products and services. You are strongly compelled to conduct several test runs of your intended use scenarios and configurations of Early Access Release products and/or services before any reliance thereon.

3. Use of Services

3.1 Your Account

You agree to provide us with accurate and complete information if you create an account in NAKIVO service. In order to prevent unauthorized access to your Account, you agree to keep your password and other Account details confidential and not share them with anyone else.

NAKIVO reserves the right to suspend or terminate any customer Account, or the access of any authorized user, for any reason, including if any registration information is inaccurate, untrue or incomplete, or if you or any of your authorized users fail to maintain the security of any access credentials.

You and your authorized users are responsible for ensuring that any access credentials are kept confidential and are not disclosed to any third party, and for all activity that occurs under your Account.

The data you upload to your Account is owned by you, and you, as the Account holder, are solely responsible for access to, content in or sharing and use of your Account. NAKIVO is not liable for any loss or damage arising from any access to, content in, or sharing and use of your Account. If you believe there has been unauthorized access to your Account, you must notify us immediately.

3.2. Your Content

“Your Content” means content that you or any Authorized User transfers to us in connection with your Account. Your Content does not include your Account information. You will ensure that Your Content does not violate any terms of these terms and conditions or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Feedback; (b) you have all rights in Your Content necessary to grant the rights contemplated by these terms and conditions.

4. Sensitive information

Early Access Release Products and Services are not intended for processing sensitive information, including, but not limited to:

  • personally identifiable information;
  • racial or ethnic origin;
  • political opinions, religious or philosophical beliefs, or trade union membership,
  • genetic data;
  • biometric data;
  • data concerning health;
  • data concerning a natural person’s sex life or sexual orientation;
  • data relating to criminal convictions and offenses or related security measures;
  • state, governmental or corporate secrets; or
  • any other data that is subject to regulatory or contractual limitations to storage and processing.

5. Usage Policy

You must not use, or encourage, promote, facilitate or instruct others to use, the EAR products or services to do the following things:

  • use the Services for any illegal purposes;
  • use the Services to store, retrieve, transmit or view any file, data, image or program that contains:
  • any illegal pictures, materials or information;
  • any harassing, libelous, abusive, threatening, harmful, unlawfully pornographic, vulgar, obscene, fraudulent, deceptive or otherwise objectionable material of any kind or nature;
  • any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
  • any code or material that violates the intellectual property rights of others; or
  • any viruses, worms, malware, "Trojan horses" or any other similar contaminating or destructive features;
  • use the Service for any spamming, chain letters or other use that may otherwise disrupt the Service or the networks through which you access and use the Services;
  • interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
  • access or attempt to access any accounts for which you have no access authorization or duplicate, modify, distribute or display any of the data or files from any such account.
  • probe, scan, or test the vulnerability of any system or network;
  • breach or otherwise circumvent any security or authentication measures;
  • access, tamper with, or use non-public areas of the Service, shared areas of the Service you have not been invited to, or IDrive Inc. computer systems;
  • access or search the Services by any means other than our publicly supported interfaces;
  • send unsolicited communications, promotions or advertisements, or spam;
  • send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
  • violate any regulations, policies and procedures of networks through which you access and use the Services; or
  • violate United States and other applicable law regarding the exportation and re-exportation of any data or other materials from the United States or other jurisdictions through the Service.

6. Security

NAKIVO will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure. However, NAKIVO cannot guarantee that unauthorized third parties will never be able to defeat safeguards in place. You are responsible for properly configuring and using the EAR Service and otherwise taking appropriate action to secure, protect and backup your Customer Account(s) and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.

7. Feedback

You are encouraged to communicate to NAKIVO any feedback, reports and recommendations regarding functionality and deficiencies of Early Access Release Products and Services as well as your recommendations regarding usage scenarios, interface and improvements thereof.

You hereby grant NAKIVO and its affiliates an irrevocable, worldwide, perpetual license to use your feedback for improving, marketing, and/or selling NAKIVO’s products. Except as otherwise set forth herein, the use of the information submitted is governed by NAKIVO’s Privacy Policy.

8. Telemetry

Early Access Release Products and Services may prompt you to send automated usage reports or telemetry to NAKIVO. You hereby grant NAKIVO and its affiliates an irrevocable, worldwide, perpetual license to use anonymized telemetry results for improving, marketing, and/or selling NAKIVO’s products. Except as otherwise set forth herein, the use of the information submitted is governed by NAKIVO’s Privacy Policy.

9. Compliance

You are responsible for your own compliance with laws, regulations, and other legal requirements applicable to the conduct of your business. The Products and Services licensed or sold as part of the Program, and the transactions contemplated by the Program, which may include technology and software, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. Further, under U.S. law, the Products may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user. You acknowledge that it is your responsibility to comply with and abide by those laws and regulations, and that any third party that you route Product to directly has also been made aware of the associated export controls. You will comply strictly with anti-bribery laws applicable in any jurisdiction where you do business and with the United States Foreign Corrupt Practices and any similar local laws.

10. Disclaimer of Warranty

THERE IS NO WARRANTY FOR EARLY ACCESS RELEASE PRODUCTS AND SERVICES, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING NAKIVO AND/OR OTHER PARTIES PROVIDE EARLY ACCESS RELEASE PRODUCTS AND SERVICES “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EARLY ACCESS RELEASE PRODUCTS AND SERVICES IS WITH YOU. SHOULD THE EARLY ACCESS RELEASE PRODUCTS AND SERVICES PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

11. Limitation of Liability

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL NAKIVO, ITS RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, PARTNERS, DIRECTORS, AND REPRESENTATIVES,, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE EARLY ACCESS RELEASE PRODUCTS AND SERVICES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF EARLY ACCESS RELEASE PRODUCTS AND SERVICES TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Miscellaneous

NAKIVO reserves the right to unilaterally and at any time modify these General EAR Terms and Conditions with or without notice.

You and NAKIVO are independent contractors and shall have no authority to bind the other.

Customer may terminate this Agreement by notifying NAKIVO. Upon termination you shall either: a) delete all full or partial copies of Early Access Release Products and Services as well as access thereto from all computing or storage equipment, or b) return to NAKIVO Early Access Release Products and Services.

If any provision herein is void or unenforceable, you agree to delete such provision and agree that the remainder of General EAR Terms and Conditions will continue to be in effect.