Retrospect, Inc.
End User License Agreement

IMPORTANT READ CAREFULLY: This End User License Agreement (“Agreement”) is a legal and binding agreement between you (either an individual or a single entity) (“You” or “Your”) and Retrospect, Inc. (“Retrospect”) for the software product You are about to download or otherwise install and the associated proprietary media, printed materials, any associated documentation (including any electronic documentation), and also any updates or modifications of the foregoing provided by Retrospect or its licensees or agents to You (collectively, the “Software”).
WHEN YOU CLICK ON THE “I ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR USE ANY PART OF THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE ANY PART OF THE SOFTWARE (AND, IF APPLICABLE, CLICK THE “I DO NOT ACCEPT” BUTTON), AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY LICENSE TO USE ANY PART OF THE SOFTWARE.  WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF RETROSPECT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.  IF THESE TERMS ARE CONSIDERED AN OFFER BY RETROSPECT, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
Under this Agreement, You are obtaining one of the following three types of licenses:  (1) a “Trial License,” which will allow you to use the Software or a premium version of the Software including additional features or functionality (“Premium Trial Version”) free of charge, for a limited period of time designated by Retrospect for evaluation purposes only; (2) a “Single-User License,” which will allow you to use one copy of the Software for Your personal use; or (3) a “Volume License,” which is a license granted when You have purchased multiple seats to the Software and which will allow you to use the Software on multiple computers at once.
1.	License.
(a)	Trial License.  If You received a trial version of the Software, or a Premium Trial Version, subject to Your compliance with the terms and conditions of this Agreement, Retrospect hereby grants to You a limited, personal, non-sublicensable, non-transferable, non-exclusive license for a limited trial period to:
(i)	use one copy of the Software and/or Premium Trial Version to evaluate the Software and/or Premium Trial Version, and only for Your personal, noncommercial use on a single computer system and only in accordance with any accompanying end user documentation; and
(ii)	make one copy of the Software and/or Premium Trial Version in machine-readable form solely for archival back-up purposes, provided You reproduce Retrospect’s copyright proprietary legends in any such copy.
If you received a Premium Trial Version, and You choose not to purchase rights to continue to use the Premium Trial Version, then upon the expiration of the trial period you will no longer have access to those features and functionality specific to the Premium Trial Version. If you choose to purchase rights to continue Your use of the features and functionality specific to the Premium Trial Version, then upon purchase, You will be subject to the Single User License below.
(b)	Single User License.  If You have purchased a Single-User License, subject to Your compliance with the terms and conditions of this Agreement, Retrospect hereby grants to You a limited, personal, non-sublicensable, non-transferable, non-exclusive license to:
(i)	use one copy of the Software only for Your personal, noncommercial use on a single computer system and only in accordance with the accompanying end user documentation; and
(ii)	make one copy of the Software in machine readable form solely for archival back-up purposes, provided You reproduce Retrospect’s copyright proprietary legends in any such copy.
(c)	Volume License. If You have purchased a Volume License from Retrospect or one of its authorized distributors, subject to Your compliance with the terms and conditions of this Agreement, Retrospect hereby grants to You a limited, personal, non-sublicensable, non-transferable, non-exclusive license to:
(i)	install the object code of the Software on computers owned or controlled by You for noncommercial use, provided that the number of computers on which the Software may be installed shall never exceed the number of seats of the Software You have purchased from Retrospect or its distributors; and
(ii)	use the Software in accordance with any relevant Retrospect end user documentation.
2.	License Restrictions.
(a)	General Restrictions.  You shall not (nor shall You permit anyone else to) directly or indirectly: (i) copy (except as expressly set forth above) or modify the Software or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any portion thereof (except where the foregoing is permitted by applicable local law, and then only to the extent so permitted); (iii) rent, lease, or use the Software or any portion thereof for timesharing or service bureau purposes, or otherwise use or allow the use of the Software or any portion thereof for any commercial purpose or on behalf of any third party; (iv) remove or obscure any proprietary notices on the Software; (v) post or otherwise make available the Software, or any portion thereof, in any form, on the Internet or other publicly-available forum; (vi) distribute copies of the Software, or any portion thereof, to others (electronically or otherwise); (vii) use a previous version of the Software after you receive a new version and are asked to discontinue using the previous version; (viii) export or reexport the Software in violation of any laws or regulations; or (ix) except as expressly set forth above, and except for the “sharing” features contained in the Software, make any single copy of the Software available for use by multiple users over any network or from any remote workstation or terminal.  Each single computer on which Software is installed and used shall be primarily available to only a single user.  You are responsible for all fees and costs associated with the copying and installation of the Software.  As a specific condition of this license, You agree to use the Software in compliance with all applicable laws, including without limitation copyright laws, and that You will not copy, transmit, perform or distribute any audio, video or other content using the Software without obtaining all necessary licenses or permissions from the owner of the content.  The Software may be protected by one or more of US and/or foreign patents owned by EMC Corporation.
(b)	Restrictions limited to Volume License.  If you have purchased a Volume License:  (i) if the Software is moved from one computer to another computer owned or controlled by You, You must destroy the copy on the first computer, unless the number of seats purchased allows for the addition of another copy; and (ii) You may not install (or allow anyone else to install) the Software on any computer not owned or controlled by You.
3.	Proprietary Rights.
Retrospect and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Software, all copies or portions thereof, and any derivative works thereof (by whomever created).  The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.  Notwithstanding anything else, the Software is licensed and not sold.  All rights in the Software not specifically granted in this Agreement are reserved by Retrospect and its licensors.
4.	Term and Termination.
This license granted under this Agreement is effective until terminated hereunder; provided, however, that if You are only permitted to use the Software on a trial basis, this license is only effective for the trial period specified by Retrospect.  You may terminate the license at any time by destroying the Software (including the related documentation) together with all copies or modifications in any form.  Retrospect will have the right to terminate the license granted herein immediately if You fail to comply with any term or condition of this Agreement.  The license granted to You herein will terminate automatically upon any breach of Section 2 or 3.  Upon termination of this Agreement for any reason, You shall immediately stop using the Software and shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software.  Sections 2, 3 (except for the license grants under Section 3(g) and distribution rights under 3(i)), and 4 through 13 shall survive any termination of this Agreement.
5.	Limited Warranty.
Except if You are purchasing a Trial License, for a period of ninety (90) days from the date You purchase the Software (the “Warranty Period”), Retrospect and its licensors warrant only that the Software will perform substantially in accordance with the specifications stated for the Software in the accompanying written end-user documentation.  THIS WARRANTY SHALL NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN ABUSED, MISUSED, DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY RETROSPECT.  THE FOREGOING LIMITED WARRANTY SHALL NOT APPLY IF YOU ARE PURCHASING A TRIAL LICENSE.
NOTWITHSTANDING ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF RETROSPECT AND ITS LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FOREGOING WARRANTY, SHALL BE, AT RETROSPECT’S OPTION AND EXPENSE:  (A) REPAIR OR REPLACEMENT OF THE SOFTWARE WITH SOFTWARE THAT MEETS THE WARRANTY OR (B) IF REPAIRING OR REPLACING THE SOFTWARE IS NOT COMMERCIALLY PRACTICABLE IN RETROSPECT'S SOLE DISCRETION, REFUND OF THE PURCHASE PRICE PAID BY YOU, IN BOTH CASES WHERE THE SOFTWARE IS RETURNED TO RETROSPECT, WITHIN THE WARRANTY PERIOD.  For warranty claims, please go to www.retrospect.com/support.
6.	Warranty Disclaimer.
THE LIMITED WARRANTY SET FORTH IN SECTION 6 IS THE ONLY WARRANTY PROVIDED BY RETROSPECT AND DOES NOT APPLY IF YOU ARE PURCHASING A TRIAL LICENSE.  EXCEPT FOR THE FOREGOING, THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” AND RETROSPECT MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE OR ANY SERVICES PROVIDED BY RETROSPECT HEREUNDER.  RETROSPECT EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, RETROSPECT DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.  RETROSPECT AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE.  THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7.	Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL RETROSPECT OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE OR THE SERVICES PROVIDED BY OR ON BEHALF OF RETROSPECT, OR (II) FOR ANY MATTER BEYOND RETROSPECT’S OR ITS LICENSORS’ REASONABLE CONTROL.  RETROSPECT’S AND ITS LICENSORS’ MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO (I) THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE OR (II) IF YOU RECEIVED THE SOFTWARE FREE OF CHARGE ON A TRIAL BASIS, FIFTY DOLLARS ($50.00), EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE RETROSPECT’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW.  THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF RETROSPECT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
8.	Export.
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations.  By using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.
9.	Indemnity.
You shall indemnify and hold harmless Retrospect from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Software as well as from Your failure to comply with any term of this Agreement.
10.	Government Restricted Rights.
If You are an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies.  This Software is commercial computer software and the related documentation is commercial computer software documentation.  The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.  Retrospect, Inc.is located at 7901 Stoneridge Dr. Ste 540., Pleasanton, California 94588.
11.	WARNING:  IF YOU ARE RECEIVING OR PURCHASING A TRIAL LICENSE, THE SOFTWARE MAY CONTAIN A MECHANISM THAT WILL CAUSE THE SOFTWARE TO CEASE PROPER OR FULL FUNCTIONING AFTER A CERTAIN PERIOD OF TIME.  THIS MAY OCCUR BEFORE OR AFTER EXPIRATION OR TERMINATION OF THE LICENSE, SO YOU MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE SOFTWARE.
12.	General.
This Agreement and the terms of any Volume License Agreement provided to You (if any) represent the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them.  This Agreement may be amended only by a writing executed by both parties.  If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable.  The failure of Retrospect to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Retrospect’s rights with respect to such breach or any subsequent breaches.  This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever without Retrospect’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Retrospect expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.  This Agreement shall be governed by and construed under California law (without regard to its conflicts of laws provisions) as such law applies to agreements between California residents entered into and to be performed within California.  The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Alameda County, California; You hereby agree to service of process in accordance with the rules of such courts.  The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.
Questions concerning this Agreement should be sent to the address set forth below.  Any notices or correspondences will only be effective if sent to such address.
Retrospect, Inc.
Attn: Legal Department
7901 Stoneridge Dr., Suite 540
Pleasanton, CA  94588