Last updated May 2018
- USE OF PRODUCT
- Ongoing Payment Requirement. The continued right to use a Product requires that it be enrolled in a valid Service Subscription and we continue to receive payment with respect to such use. If a Product is not properly registered in a current Service Subscription for which applicable payments are current, we have no obligation to allow remote access to the Product or to continue provide any related Network Services.
- Third Party Technology/Services. Certain Products may provide access to third party services, the use of which is subject to such third parties’ terms. By using any Product with such capability, you expressly agree to all applicable Third Party Networking Terms.
- Links to Third Party Applications. Third parties may create products or services (“Third Party Apps”) that connect to or interact with certain Products. Any Third Party App is provided by a third party, not us, pursuant to a separate agreement between you and the third party provider. We do not endorse, support or control any Third Party Apps. We make no representation or warranty with respect to any Third Party App and we expressly disclaim all liability with respect to your use of any Product with a Third Party App.
- LIMITATIONS ON RIGHTS OF USE
- Limitation on Product Use. Use of the Product must at all times be in compliance with all Applicable Laws. The Product may not be used (i) in a manner that infringes or misappropriates any Intellectual Property Rights or other rights of any third party; (ii) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Law; or (iii) to transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Product.
- Failover Mode Limitations. If a Product includes Failover Mode capability, Failover Mode may be used only for a limited testing period and for the internal business operations of the Network Owner during a period of documented primary internet outage affecting the Network on which the Networking Device with Failover Mode capability is deployed. Except with our express consent, Failover Mode may not be used for any other situation nor may it be used in a manner that (i) adversely impacts Datto or the underlying wireless service provider; (ii) results in excessive bandwidth usage; (iii) is for the benefit of any public or third party access to wireless service; or (iv) involves the use of non-authorized equipment.
- Datto’s Rights. In the event we reasonably believe any Product use: (i) violates the restrictions or limitations in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Product; or (iii) may otherwise subject us to liability, we reserve the right to disable Network Services and access to the Product through the Network Management Portal. We may also take such action as required to comply with Applicable Law. We will use reasonable efforts to contact an Administrator prior to taking such action. Notwithstanding the foregoing, we may restrict access to any Product without prior notice including as necessary to comply with Applicable Law or protect against threats to our systems or any Product. If we take any such action without prior notice, we will provide notice to an Administrator within a reasonable time, unless prohibited by Applicable Law.
- Certain Uses Not Supported. Use of the Product is not authorized, will not be supported by us, and any warranties will be void, if the Product is modified in any way or used in a manner for which it is not intended, including but not limited to (i) using software or hardware that is not intended, recommended or approved by us for the Product; or (ii) use, access and support of the Product by other than authorized personnel who are knowledgeable about the Product and are able to demonstrate the required level technical competency with respect to the use of the Product.
- Your Obligations. You agree to immediately notify us of any unauthorized use of the Product of which you become aware and agree to immediately take such actions as are necessary to end and prevent any such unauthorized use. You acknowledge and agree that any breach of this Section 2 will cause immediate and irreparable injury to us, and in such event, we may seek and obtain injunctive relief, without bond or other security, in addition to other remedies available at law and in equity.
- REMOTE MONITORING AND MANAGEMENT
- Your use of the Product includes access to and use of the Network Management Portal hosted by us through which a Product is managed.
- You are responsible for all activities that occur in your Network Management Portal account (“Account”), regardless of whether the activities are undertaken by you, or by others on your behalf (including any administrative users and/or any Network Owner you authorize). Your Account may be hosted in the U.S. regardless of where you, any Networking Device or Network may be located. You are responsible for securing any necessary consents, if any, related to the hosting location of your Account. You are responsible for the security of your Account settings and access credentials (including all passwords). If an unauthorized party may be using your Account, if your Account access credentials are lost or stolen, or if you become aware of any other actual or potential breach of security, you should notify us immediately. You agree that we will not be liable for any loss of any kind resulting from a) any party using your Account access credentials; and b) activity within your Account, either with or without your knowledge or authorization.
- Certain Products may be used only in designated geographic regions and you represent and warrant that you will not use or in any way facilitate the use of such Products outside their designated geographic regions.
- Your Responsibilities. You are responsible for proper installation of the Product on a Network with a full time primary internet service. You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to use of the Product. In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to Networking Device access, power backup, Network connectivity, internet connectivity and primary internet service.
- THIRD PARTY ADMINISTRATOR RIGHTS AND RESPONSIBILITIES
- Third Party Administrator Responsibilities Regarding Product Use. If you are a third party Administrator managing the Product on behalf of a Network Owner, you represent and warrant that you are acting as an agent on behalf of the Network Owner (who is the principal) and that you are acting within the scope of your agency. Accordingly, you agree to obtain Network Owner’s authorization and comply with Network Owner’s instructions at all times with respect to use of the Product, including but not limited to: type of Network Service, Networking Device settings, access controls, transition of Product to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, Network Owner and/or Datto.
- Network Owner Terms. If you are a third party Administrator managing the Product on behalf of a Network Owner you must ensure that each Network Owner agrees to certain Network Owner Terms as part of a valid, enforceable contract between you and the Network Owner. Upon our request, you must provide evidence of each Network Owner’s acceptance of the Network Owner Terms. You agree to immediately notify us of any known or suspected breach of any Network Owner Terms and to assist us in the enforcement of the same.
- MAINTENANCE, SUPPORT AND TRAINING
- Datto’s Maintenance and Support. We will provide reasonable support for the Products in accordance with our then-current Datto Networking maintenance and support Policies, as the same may be updated by us from time-to-time.
- Direct Support. By requesting support services directly from us, you represent that you are authorized to do so and are knowledgeable about the Product and are able to demonstrate the required level of technical competency with respect to use of the Product. We reserve the right not to provide direct support to any individual not meeting these requirements.
- Support Authorization. You agree to cooperate in good faith to implement our suggestions and solutions, and assist us in maintenance and troubleshooting issues, with respect to support of the Product. We may rely on the instructions and authorizations given to us by any Administrator with access to a Product, and we will have no obligation to inform any other Administrator of the Product of the same.
- Training. We make available opportunities for training on the Product. Our training provides instruction on the general use and functionality of the Product but is not the same, and should not be relied on, as advice in specific technical support situations. You acknowledge and agree that we will not be liable for any statements or omissions made during training or contained in training materials.
- TERM AND TERMINATION
- Effect of Termination. In the event of termination for any reason you must immediately stop using the Network Management Portal for the Product and securely destroy all related Confidential Information. The licenses granted and all Network Services with respect to a given Product will automatically terminate on expiration or termination under this Section 6. We reserve the right to permanently delete or disable access to all related Network Data, without liability for such deletion, 30 days after the termination.
- Survival. Notwithstanding anything to the contrary, the following provisions will survive termination: those that by their express terms survive or by their nature may be reasonably inferred to survive, as well as sections 8 (Use of Information), 9 (Confidentiality), 10 (Warranty and Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 13 (Export Controls and Government Uses), 14 (Arbitration/Class Action Waiver); 15 (Additional Provisions) and 16 (Definitions).
- UPDATES AND TESTING
- Right to Change Products. We reserve the right at any time, in our sole discretion, to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to any and all Specifications for the Products. We will use reasonable commercial efforts to provide you notice of any material changes.
- Remote Testing and Updates. You agree that we may and hereby authorize us, at any time and from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product.
- USE OF INFORMATION
- Use of Feedback. If you provide us with reports, comments, suggestions, ideas or other feedback regarding the Products, whether written or oral (collectively “Feedback”), either directly or through any third party, you do so without any expectation of compensation. You hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the Products and for any other purpose, including in all media now known and later developed. Feedback is strictly voluntary, and we are not required to hold it in confidence.
- Use of Network Data. We store and make available to you for a limited period through the Network Management Portal certain Network Data to allow you to monitor Network use and performance. We reserve the right to delete all such data after a period of 30 days.
- Use of Log Data. Operational data concerning use of the Products, including but not limited to, information servers automatically record relating to the access and use of the Products, such as IP addresses, authentication tokens, access logs, Networking Device settings and Network Management Portal settings are used by us to provide and manage use of the Products and our business and you agree we may use such Log Data for such purposes.
- Products are Datto Confidential Information. The Products, including their structure, organization and source code, are comprised of commercially valuable assets belonging to us or our licensors, the development or acquisition of which required the investment of substantial time, effort and cost. You acknowledge and agree that the Products may contain trade secrets and they (and all portions thereof) are our Confidential Information and are proprietary to us. Accordingly, you hereby agree to use the highest degree of care to maintain the confidentiality of the Products.
- Permitted Disclosures. Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors and independent contractors (collectively “Representatives”) who have a need to know such Confidential Information in order to perform their duties provided they have a legal duty to protect the Confidential Information. A party receiving Confidential Information of the other party assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.
- Required Disclosures. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
- Injunctive Relief. Each party acknowledges that any breach of any provision of this Section 9 (Confidentiality) by the receiving party, or its Representatives, may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
- WARRANTY AND DISCLAIMER
- Limited Datto Hardware Warranty. Warranty terms for physical hardware Networking Devices are available on an Online Portal.
EXCEPT FOR THE LIMITED HARDWARE WARRANTY, YOU ACKNOWLEDGE THAT THE PRODUCTS, INCLUDING ALL NETWORK SERVICES, ARE PROVIDED AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PRODUCT WILL MEET ANY NETWORK OWNER OR ADMINISTRATOR REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED.
THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND WIRELESS SERVICE AVAILABILITY. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL DATTO WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
- Limited Datto Hardware Warranty. Warranty terms for physical hardware Networking Devices are available on an Online Portal.
- LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE CUMULATIVE LIABILITY (AND THAT OF OUR SUPPLIERS/LICENSORS FOR ALL CLAIMS AND DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR STRICT LIABILITY) WILL BE LIMITED TO DIRECT DAMAGES ONLY THAT DO NOT EXCEED AN AMOUNT EQUAL TO THE FEES WE RECEIVE FOR THE INDIVIDUAL APPLICABLE PRODUCT IN THE 12 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT INVOLVING THAT PRODUCT GIVING RISE TO THE CLAIM OCCURRED.
- Process. The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
- EXPORT CONTROL AND GOVERNMENT USES
- Export Compliance. You represent and warrant that in connection with your use of the Products you: (i) will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority; (ii) will not export or re-export or allow the export or re-export of the Products in violation of any such export laws, restrictions, controls or regulations.
- Government Entities. If Products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon Datto unless specifically agreed to by Datto in writing. If the Network Owner is a U.S. Government entity or person, the Product is being provided as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101).
- ARBITRATION; CLASS ACTION WAIVER
- Courts. In any circumstances where the parties may litigate in court, the parties hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 15.2.
- No Class Actions. All disputes arising out of or related to this Agreement or any Product must be brought on an individual basis, and you hereby waive your right to, and agree that you will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.
- ADDITIONAL PROVISIONS
- Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
- Electronic Communications. You consent to receive communications from us in electronic form and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.
- No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
- Notices. All notices required or permitted hereunder will be in writing and delivered by nationally recognized overnight courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to you will be sent to you at the address specified in an Online Portal. Notices to us must be sent to 101 Merritt 7, Norwalk, CT 06851 Attn: General Counsel. In addition, we may send any notice required or permitted hereunder to you at the email address specified in an Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.
- Entire Agreement. These Term of Use, and applicable Policies and Specifications constitute the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.
- “Confidential Information” means any information whether oral, written, electronic, or in any other format disclosed by either you or Datto to the other related to the operations of either party or a third party that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure are reasonably to be treated as confidential. Information available to you through the Network Management Portal is Datto Confidential Information.
- “Datto Software” means the software technology and all Intellectual Property Rights of Datto and its licensors in the Products, including (i) any software embedded in or otherwise running on a Networking Device; and (ii) the Network Management Portal.
- “Failover Mode” means continued use of certain Products through means of LTE or other cellular wireless internet service in the event of primary internet failure affecting the Network on which such a Networking Device with Failover Mode is deployed.
- “Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
- “Network” means a private connection of one or more LANs, connected to the internet through a primary ISP, belonging to and intended to be accessible only by a single organization/entity or its authorized users and not for multi-tenant or public use.
- “Network Data” means information about traffic on the Network on which a Networking Device is deployed, devices on the Network, and information transmitted by devices attempting to access or download data via the Network.
- “Networking Device” means any Datto networking hardware device.
- “Network Owner” means the person or entity that owns, licenses, or lawfully controls the Network on which a Networking Device is deployed.
- “Network Management Portal” means a remote web-based software platform provided by Datto through which configuration, management, monitoring, support and use of the Products is made available.
- “Network Services” means all services provided by or on behalf of Datto that are part of or comprise any Product, including without limitation, wireless access, data routing and/or switching on a local area network, configuration, maintenance, monitoring, and support of Networking Devices, failover protection for certain Products in the event of primary internet failure, technical support, training, or other features and functionalities as they become available. Network Services may be provided through any of the following, or any combination of the following, or any later developed or implemented, means: (i) the use of a Networking Device owned by or under the control of a Network Owner or a third party Administrator; (ii) the use of the Network Management Portal.
- “Online Portal” means a remote web-based application or portal provided by Datto that contains information related to the Products. The Network Management Portal is one type of Online Portal.
- “Product” means any Datto networking product consisting of a Networking Device and Network Services.
- “Policies” means the terms and conditions of any policies applicable to access, use, and support of the Products.
- “Service Subscription” means the type of Network Service Plan and payment Term in which a Networking Device is enrolled, as set forth in the Datto Networking Policies.
- “Specifications” means the Policies, documentation, user manuals and any technical publications and materials, as applicable, relating to the Products.
- USE OF PRODUCT
Third Party Networking Terms
The Product may not be deployed in any area that requires continuous roaming access to wireless service.
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YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN DATTO, INC. AND THE UNDERLYING CARRIER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS AND DEMANDS THEREFOR.
Datto may be required to indemnify and hold harmless the underlying carrier supplying wireless services, and its officers, employees, and agents against any and all claims, including without limitation claims for libel, slander, infringement of copyright, or personal injury or death, arising in any way directly or indirectly in connection with the agreement for such services (even after termination of such agreement) or the use, failure to use, or inability to use the access telephone number.
If Datto’s obligation in any such instance arises from your actions or inactions, you agree that you will in turn fully indemnify and hold harmless Datto.