Common use of Subscription Based License Clause in Contracts

Subscription Based License. If Licensee is an MSP or in the business of providing managed or professional services to third parties, Licensee may license the Software Product on a subscription basis in order to install and use the Software Product on computers owned by its customer, provided that such installation and use does not otherwise violate this Agreement. If Licensee licenses the Software Product on a subscription basis through a distributor, reseller, or master MSP (collectively referred to as “Distributor”), Licensee understands and acknowledges that, in the event that such Distributor fails to pay fees associated with use or distribution of the Software Product, or otherwise breaches its agreement with Arcserve (or its subsidiary or corporate affiliate), Licensee’s use of the Software Product, access to the Portal, if any, and/or Product Support may be suspended or terminated. Licensee further understands, acknowledges, and consents that Licensee’s agreement with such Distributor may be assigned to Arcserve or its designee to permit continued delivery of the Software Product. If Licensee licenses the Software Product on a subscription basis as an MSP or as part of a business engaged in protecting, managing, and/or storing customer data, the following shall apply: (i) Licensee will advise the customer in writing of all terms in this Agreement that may adversely affect the customer if this Agreement is terminated; (ii) Licensee is responsible for delivering any managed and professional services in compliance with this Agreement and ensuring Licensee’s customers compliance with the requirements of this Agreement; (iii) Licensee shall enter into a written agreement with its customers, the terms of which shall include the following: (1) Arcserve is the owner of the Software Product; (2) the Software Product is licensed to Licensee, not the customer; (3) the Software Product is licensed “as is”, with all faults, and there are no warranties, representations, or conditions, express or implied, written or oral, arising by statute, operation of law, or otherwise relating to the Software Product; and (4) Arcserve is not liable for any damages, whether direct, incidental, indirect, special, punitive, or consequential (subsections (iii)(1) through (iii)(4) collectively, the “Minimum Customer Terms”); and (iv) if Licensee fails to advise customers of the Minimum Customer Terms, Licensee shall indemnify and hold Arcserve and its parent, affiliate and subsidiaries harmless from any and all claims, damages, and liabilities arising from such failure.