End User License Agreement

Probax End User License Agreement

Last Updated 4 December 2023

IMPORTANT NOTICE: PLEASE READ CAREFULLY.

THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (AS AN INDIVIDUAL OR ENTITY, “YOU”) AND Probax USA, Inc. (“Probax”), WHICH SETS out THE RIGHTS AND OBLIGATIONS GOVERNING PROBAX SOFTWARE PRODUCTS (“SOFTWARE”), LIMITED SUPPORT SERVICES, AND ASSOCIATED DOCUMENTATION. BY INSTALLING, USING OR OTHERWISE INTERACTING WITH THE SOFTWARE OR DOCUMENTATION or DELIVERING OR RECEIVING SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT USE OR OTHERWISE INTERACT WITH THE SOFTWARE, DOCUMENTATION OR SERVICES. You MUST inform all users of the Software, documentation or services of the terms and conditions of this EULA.

1. Grant of License
   • This EULA grants You a non-exclusive, non-transferable, non-sublicensable right to install and use the Software and any related documentation (“Documentation”) under the terms and conditions set forth in this EULA.
   • You agree that Your access to and use of the Software and Documentation and all updates, enhancements, maintenance releases, patches, bug-fixes or other modifications to the Software and/or Documentation provided to You, on a when and if available basis, is governed by and subject to Your compliance with the terms and conditions, including the limited warranty, exclusive remedies and limitations of liability provisions, contained in this EULA.
   • The Software is to be used in accordance with the specific license You purchased (“Your License”). You may only use up to the number of licenses or capacity that You have purchased. In the event You exceed the purchased number of licenses or capacity, You hereby authorize Probax to automatically increase the number of licenses to the requisite number and agree to pay all additional license fees.
   • You are permitted to make copies of the Software and Documentation for Your own use in accordance with this EULA and subject to the terms of Your License. Probax and its affiliates including Probax Pty Ltd (“Probax Affiliate”) retain all intellectual property rights in any copies or partial copies of the Software and Documentation that You make, and You must incorporate all relevant patent, copyright and trademark notices in such copies or partial copies of the Software and Documentation that You make. You may not use the Probax trademarks for any other purpose.
   • The purchase of Your License (including any additional licenses automatically included in Your purchase under Section 3), is final and non-returnable and non-refundable.
   • Your License is purchased and will commence upon the date Your order is processed and access to the Software is granted to You.
   • No rights are granted to You under Your License and this EULA other than a license to use the Software and Documentation upon the terms expressly set forth in this EULA.
   • You acknowledge and agree that: (1) Probax may amend and update this EULA from time to time, at its discretion, with the current version of the EULA available at www.probax.io/eula; (2) the version of the EULA which applies to You at any particular time is the then current version of the EULA available at www.probax.io/eula; and any reference herein to “this EULA” means “the then current version of the EULA available at www.probax.io/eula”.
   • You acknowledge and agree that Your use of the Software and Documentation may be subject to all additional terms, policies, rules, or guidelines applicable to the Software and Documentation or certain features of the Software and Documentation that Probax may post on or link to from the Software and Documentation (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this EULA.
2. Prohibited Use
   • Without Probax’s express prior written consent, You may not (either directly or indirectly through any employee, contractor, consultant, agent or other representative): (1) sell, resell, transfer, assign, share, or make the Software or Your License available to any third party (including, without limitation, sharing Your License on any website, forum or social media); (2) process third-party data (as a service provider), provide commercial hosting or support services, loan, sublicense, rent or lease, in whole or in part, the Software to another party, or otherwise use the Software on a service bureau basis, without purchasing a specific Probax license to do so; (3) decipher, decompile, disassemble, reverse assemble, reverse engineer, adapt, modify, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Software, in whole or in part, for any purpose or in any manner (except to the extent such prohibition is expressly prohibited by law); (4) write, create or develop any derivative software or documentation or other software programs based upon the Software and/or Documentation; (5) use the Software and/or Documentation in violation of any applicable laws or regulations; (6 disclose, transfer or otherwise make available the results of any performance, capacity or functionality tests or any benchmark testing of the Software to any third-party; (7) make a copy of any of the Software and/or Documentation for any purpose not explicitly permitted herein; or (8) otherwise use the Software and/or Documentation for any purpose other than as permitted in this EULA.
   • You may not remove, destroy, erase, alter or otherwise modify any patent, copyright or trademark notices in the Software and Documentation or remove, destroy, erase, alter or otherwise modify any of Probax’s trademarks.
   • Unless the Software is provided to You for beta, demonstration, test, or evaluation purposes or is labeled “Not for Resale” as described at Section 3 below, You agree to use the Software solely for Your internal data center operations and to restrict any access to the Software, Documentation, or other user information accompanying the Software only to those of Your employees having a demonstrable need to have such access for Your internal data processing
   • You agree that You shall not permit any access to the Software, Documentation, or other user information accompanying the Software and Documentation to any person engaged in product research, development, support, sales, marketing, or other functions not directly related to You, or for any purpose other than as permitted in this EULA. You also agree not to: (1) use the Software, Documentation, or user information accompanying the Software and Documentation to assist, directly or indirectly, in the development or design of any computer hardware or software program including, but not limited to, a program that provides or is intended to provide or include a similar feature or functionality as the Software, or any conversion utility or aid relating to the Software intended to enable or facilitate a user’s conversion from the use of the Software to an alternative program; or (2) interfere with or otherwise circumvent mechanisms in the Software intended to limit its use, or permit others to do the same.
3. Trial Licenses
   • The Software may be provided to You for beta, demonstration, test or evaluation purposes, with either “Trial License” or “Not for Resale License” (collectively, “Trial Licenses”). The terms and conditions set forth in this EULA apply to Trial Licenses subject to the modifications set out in this Section 3.
   • For any Trial Licenses, the term is limited and will be defined to You by Probax and Probax reserves the right to terminate this EULA and any Trial License immediately, upon written notice, at its convenience.
   • Trial Licenses are limited specifically to use for demonstration, test or evaluation purposes only, and You agree not to use the Software for third-party processing purposes. Trial Licenses cannot be used in production environments or to process production data backups.
   • Your use of the Software under a Trial License is provided as-is, without any representations or warranties of any kind, and is at Your sole In no event will Probax be liable for any damages, for any claim or cause for any damages of any kind, including, without limitation, any direct, indirect, special, incidental, exemplary, statutory, punitive or consequential damages (including, without limitation, loss of profits, loss of use or data, damage to systems or equipment, business interruption or cost of cover) in connection with or arising out of the delivery, performance or use of the Software, Documentation or any other material provided under a Trial License. You are not entitled to any defense, indemnification or warranty protection for Trial Licenses.
4. Maintenance and Support
   • Maintenance and support (collectively, “Maintenance”) for the Software is available in accordance with Your License. Maintenance will commence upon the date Your order is processed and access to the Software is granted to You.
   • You will receive (1) support for the Software the subject of Your License, and (2) any updates, enhancements, maintenance releases, patches, bug-fixes or other modifications that are included or defined in Your License.
   • If You require support, You must contact the Probax support team by logging a ticket at support@probax.io. You may also consult support articles available at http://kb.probax.io.
5. Technical Information Collection
   • Probax cannot access the Software installed in Your chosen environment(s) or any data that You manage using the Software unless You voluntarily provide Probax with remote access to the chosen environment(s) through TeamViewer or similar. Probax cannot access any technical information pertaining to the configuration or performance of the Software unless You voluntarily provide it to Probax by uploading log files, sharing screenshots, descriptions, reports, survey information, pertaining to the Software use.
   • Probax products that support automatic license updates generate and send license usage statistics to Probax. THIS FUNCTIONALITY CANNOT BE DISABLED.
   • Where technical information pertaining to license usage and configuration or performance of the Software is collected in accordance with this Section 5, You agree that Probax, Probax Affiliate, and their affiliates and licensors may, for business purposes, process and use any such technical
6. Fair Use Policy
   • Probax monitors the use of its Software according to a Fair Use Policy created to prevent improper or abnormal use of the Software to maximize the user experience for all Probax customers. The Fair Use Policy comprises, but is not limited to, elements such as Maintenance, storage, egress and ingress charges.
   • Additional fees are not charged when You use the Software reasonably and normally. In determining the scope of Fair Use, Probax considers Your License and the observed use of all our users, technical advances and the current price rate of all necessary assets. Probax will adjust these values when there is reasonable cause, and this will often result in the raising of thresholds.
   • Where You are in breach of the Fair Use Policy, Probax will contact You to discuss the situation and potential alternatives which may include requiring You to purchase additional licenses.
7. Personal Information
   • In this EULA, information that can be used to identify, either directly or indirectly, an individual to whom the information applies is referred to as “Personal Information”.
   • Some Personal Information will be required to place Your order for access to the Software. You may also voluntarily provide Personal Information to Probax in connection with Maintenance or otherwise.
   • Where any Personal Information necessary for Probax’s provision of the Software and any related services is provided to Probax, it will be used and stored in accordance with Probax’s Privacy Policy, which can be found at www.probax.io/privacy-policy. You can update Your preferences with respect to Your Personal Information by contacting Probax support team.
8. Intellectual Property Rights
   • The Software is LICENSED, NOT SOLD. The Software, Documentation, and any other Probax materials or information provided or made available to You in connection with this EULA, including any copies thereof You are permitted to make in accordance with this EULA (“Probax Property”) is protected by patent, copyright, trademark, trade secret and other laws, including, without limitation, international treaties.
   • Any reports regarding Your use of the Probax Property and any other usage information, results, comments, ideas, feedback or suggestions provided by You to Probax regarding the Probax Property (collectively, “Feedback”) shall be deemed non-confidential to You and You agree that Probax will be free to use the Feedback in any manner and for any reason (including to incorporate the Feedback into future versions of its products and services), with no obligation of confidentiality or compensation to You and without restriction of any kind.
   • All rights, title and interest in the Probax Property, the intellectual property rights in the Probax Property and any derivative works based on the Probax Property are owned by Probax, Probax Affiliate or any third-party licensor. In addition, You hereby acknowledge and agree that all rights, title and interest in and to all Feedback is owned by Probax and Probax Affiliate and You hereby assign any right, title and interest in and to any such Feedback to Probax and Probax Affiliate and You agree to execute any necessary documents as reasonably required and requested by Probax in connection with the
   • You will promptly report to Probax any infringement of the intellectual property rights of Probax, Probax Affiliate and/or any third-party licensor.
   • In addition to any other rights or remedies available to them, third-party licensors are third-party beneficiaries of this EULA with regard to their respective component(s) and may have the right to enforce such terms against You.
   • The provisions of this Section 8 shall survive termination of this EULA.
9. Open-Source Software
   • Probax may include various open-source software components in or with the Software (collectively, “OSS”), each of which is owned by a third-party and is subject to its own applicable license terms and
   • All OSS is provided on an “as-is” basis, and Probax makes no express or implied warranties of any kind with respect thereto and assumes no liability for any damages regarding the use or operation of any such OSS.
10. Compliance with Laws and Sanctions
    • The Software and Documentation may be subject to S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import controls and regulations in other countries (“Sanctions”).
    • You must: (1) comply with all Sanctions and agree to be solely responsible for determining whether You may export, re-export, or import the Software and Documentation in a legally compliant manner and obtain any applicable licenses to export, re- export, or import the Software and Documentation; and (2) not to engage in any transaction or activity that would result in liability to Probax or Probax Affiliate under any Sanctions.
    • You warrant that you: (1) are not subject to any Sanctions; (2) will not download or otherwise export or re-export the Software and Documentation, directly or indirectly, in breach of any Sanctions or permit any third party to do so; (3) will not use or allow the use of the Software and Documentation for any purposes prohibited by any Sanctions or applicable law, including, without limitation, for the development, design, manufacture, or production of nuclear, chemical, or biological weapons, weapons of mass destruction or their proliferation; or (4) will not use or permit others to use the Software and Documentation to create, store, backup, distribute, or provide access to child pornography or any other content or data which is illegal under the applicable law.
11. Audit
    • During the term of this EULA and for a period of one year thereafter, Probax may, during normal business hours and upon reasonable prior notice to You, inspect and audit Your files, computer processors, equipment and facilities to verify Your compliance with this EULA and Your use of the Software in compliance with Your License and with the quantities purchased via authorized Probax resellers or online marketplaces. Any such inspection or audit may, at Probax’s election, be conducted at Your facilities or electronically.
    • Any information obtained during such inspection or audit will be used by Probax solely for the enforcement of Probax’s rights under this EULA and applicable law.
    • If such inspection or audit discloses that You have installed, accessed, used, or otherwise permitted access to the Software and Documentation in a manner that is not permitted by the terms of this EULA, then Probax may terminate this EULA immediately and You shall reimburse Probax for any unpaid license fees and all reasonable expenses related to such inspection or audit. Nothing in this section shall be deemed to limit any legal or equitable remedies available to Probax for violation of this EULA or applicable law.
12. Taxes and penalties
    • You agree to be responsible for all taxes and any penalties and/or interest associated with Your License. You shall be solely responsible for any taxes payable on Your License.
    • If any taxing or governmental authority makes a claim against Probax for taxes, interest, penalties or other payments related to Your License, You agree to indemnify and hold Probax harmless from and against all such claims, proceedings, actions and liabilities associated therewith.
13. Indemnification for Intellectual Property Claim
    • Probax will defend or, at its option, settle any action, suit or proceeding against You that is based upon a claim that Your use of the Software infringes any patent, copyright or other intellectual property right of a third-party (“Intellectual Property Claim”), and will indemnify You against any amounts awarded against You as a result of the Intellectual Property Claim provided that: (1) Probax is promptly notified of the assertion of the Intellectual Property Claim; (2) Probax has sole control of its defense and/or settlement; and (3) You provide reasonable assistance and cooperate in Probax’s defense and/or settlement, at Probax’s
    • Probax’s defense and indemnity obligations under Section 1 do not apply, and You shall be responsible for the defense and/or settlement of any claims where: (1) Your use of the Software or Documentation is beyond the scope of Your License and the terms of this EULA; (2) You modified or created derivative works from the Software and/or Documentation; (3) You used an outdated and infringing version of the Software and/or Documentation after release of a non-infringing version by Probax; (4) You used or combined the Software with any technology, software or hardware not supplied by Probax, where the alleged infringement would not have occurred absent such use or combination; or (5) You used a Trial Licenses.
    • In the event any Intellectual Property Claim is brought or threatened, Probax will, at its sole option and expense: (1) procure for You the right to continue use of the Software or the allegedly infringing part thereof; or (2) modify or amend or replace the same with other software or material having substantially similar functionality and The aforementioned options are Your sole remedy in the event any Intellectual Property Claim is brought or threatened against You.
14. Limited Warranty and Limitations of Liability
    • Probax warrants that the Software, in its unmodified form as initially delivered or made available to You, will perform substantially in accordance with the Documentation for such Software for a warranty period of 90 days from the date the Software is licensed to You (“Warranty Period”).
    • In the event the Software fails in a material respect to operate in accordance with the Documentation during the Warranty Period and Probax is unable to correct the failure, Probax’s sole and exclusive liability and Your sole and exclusive remedy shall be a refund of the license fees, if any, paid by You for the applicable Software from the date on which You first notified Probax of the failure. All claims must be raised within the Warranty
    • The limited warranty set forth in Sections1 and 13.2 will not apply to Trial Licenses or if the failure of the Software is the result of damage or misuse You caused. In the event a reported failure with the Software was caused by You, or upon being notified of the failure Probax determines that the Software is in compliance with the limited warranty set forth in Sections 13.1 and 13.2, You agree to reimburse Probax for its correction efforts in accordance with its then standard rates.
    • EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Sections1 and 13.2, THE SOFTWARE AND MAINTENANCE ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND and Probax and Probax Affiliate SPECIFICALLY DISCLAIMS ALL STATUTORY, Express or implied WARRANTIES and representations of any kind as well as any warranties arising from USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANC, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS or error-free, Free OF VIRUSES, accurate, will be uninterrupted, reliable and without loss of data; (2) any WARRANTIES OF MERCHANTABILITY, functionality, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD PARTY RIGHTS BY FILTERING, DISABLING, OR REMOVING SUCH THIRD PARTY'S SOFTWARE, SPYWARE, ADWARE, COOKIES, EMAILS, DOCUMENTS, ADVERTISEMENTS OR THE LIKE.
    • NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Probax OR ANY THIRD-PARTY, INCLUDING, WITHOUT LIMITATION, ANY Probax DISTRIBUTORS OR RESELLERS, SHALL CREATE ANY WARRANTY IN ADDITION TO, OR IN ANY WAY INCREASE THE SCOPE OF, THE LIMITED WARRANTY SET FORTH IN Sections1 and 13.2.
    • IN NO EVENT WILL Probax, Probax affiliate OR ANY OF their AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, indirect, EXEMPLARY, STATUTORY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE, Documentation OR ANY OTHER MATERIALS OR MAINTENANCE PROVIDED BY Probax UNDER THIS EULA, WHETHER ALLEGED AS A BREACH OF CONTRACT CLAIM OR AS ANOTHER TYPE OF CLAIM, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR UNJUST ENRICHMENT, UNFAIR COMPETITION OR BUSINESS PRACTICES, OR OTHER TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, STRICT LIABILITY, product liability or otherwise, EVEN IF Probax HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF The LIMITED WARRANTY SET FORTH IN Sections1 and 13.2.
    • Probax’s MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS EULA AND Probax’s RELATIONSHIP WITH YOU SHALL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY YOU TO Probax FOR THE RELEVANT SOFTWARE DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THE APPLICABLE CAUSE OF ACTION AROSE.
    • NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS EULA OR TRANSACTIONS CONTEMPLATED BY THIS EULA MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS EULA, A CAUSE OF ACTION SHALL BE DEEMED TO HAVE ACCRUED WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE BREACH OR CLAIMED BREACH.
    • THE above PROVISIONS in this section 14 STATE Probax's and the Probax affiliate’s ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY WARRANTY.
15. Variation and Assignment
    • This EULA may be amended from time to time by Probax, at its discretion, and the then current version of this EULA will be made available at [insert website].
    • You may not assign or transfer this EULA, in whole or in part, including by way of merger, consolidation, a sale of assets, or a similar transaction without the prior written consent of Probax. Probax may assign and delegate this EULA without restriction. Subject to the foregoing, this EULA is binding upon and shall inure to the benefit of the parties and their respective successors and permitted
16. Termination
    • Except as otherwise provided herein, this EULA and the license granted herein shall continue until the expiry of Your License provided You comply with the terms of this EULA. This EULA will terminate immediately without notice from Probax if You fail to comply with any provision of this
    • Upon the earlier of the expiry of Your License or termination of this EULA, You must immediately cease using the Software and Documentation and remove and uninstalled from Your machines all such Software and Documentation including any copies thereof in Your possession or control.
    • The provisions of Sections 2, 8, 10, 12, 14 and 5 as well as those provisions that by their nature are intended to survive termination or expiration of this EULA, will so survive.
17. General
    • This EULA, together with the policies and information referenced herein, sets forth Probax’s entire obligation and Your exclusive rights as to the Software and Documentation, and supersedes any conflicting terms of any purchase order, order acknowledgment form, invoice, other business form submitted by You and any other communication regarding the same.
    • No advertisements, catalogues or other publications or statements, whether written or oral, regarding the performance of the Software shall form part of this EULA.
    • No failure of either party to exercise or enforce any of its rights hereunder will act as a
    • If any provision of this EULA is found to be invalid or unenforceable by a court of competent jurisdiction, it will be enforced to the maximum extent permissible, and the remaining provisions of this EULA shall remain in full force and effect.
    • This EULA is governed by the laws of governed by the laws of Delaware, USA, without regard to any provisions concerning the applicability of the laws of other jurisdictions.