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Crofti

PRIVACY POLICY & STANDARD TERMS

CROFTi

CROFTI STANDARD TERMS

Standard Terms

1.       Entire Agreement

1.1     Understandings and Prior Negotiations

This Agreement:

(a)    is the entire agreement and understanding between the parties relating to the subject matter of the Agreement; and

(b)    supersedes any prior agreement, representation (written or oral) or understanding on anything connected with that subject matter.

1.2     Order of Priority

The following are comprised in the Agreement:

(a)    these Standard Terms;

(c)    all Crofti Policies;

(d)    the Proposal; and

(e)    any other document forming part of the Agreement as agreed to in writing by the Parties.

1.3     Conflicting Terms

Where any inconsistency arises between any of the documents, for interpretation, the following will be the order of precedence:

(a)    the Proposal;

(b)    these Standard Terms including any schedule annexed;

(c)    the Crofti Policies; and then

(d)    any other document forming part of the Agreement as agreed to in writing by the Parties.

2.       Term

2.1     Client Services Agreement term

The term of this Agreement commences on the Commencement Date and continues until the Expiry Date (subject to clause 2.2 of this Agreement) (the ‘Term’).

2.2     Ongoing Agreement

(a)    This Agreement will rollover in successive agreements of one month upon expiry of the Term, unless terminated by either Parties in accordance with clause 2.3 of this Agreement.

(b)    Further to clause 2.2(a), if the Client does not wish to renew the Agreement, they must serve an End of Term Notice no later than 30 days prior to expiry of the current Term. The End of Term Notice may be provided by letter, facsimile and/or email so long as it is in writing and confirmation of receipt is provided.

2.3     End of Term Notice

If a party provides a valid End of Term Notice to the other party, the Term shall expire on the date that is 30 days after the last day of the Term during which the End of Term Notice was given.

2.4     Services after expiry

If for whatever reason, Crofti is engaged by the Client to perform Services after expiry of the Term, or termination, then the Standard Terms will apply to the Services performed, and such Services (performed at Crofti’s sole discretion) will be time costed and billed to the Client.

3.       Services

3.1     Services

Crofti agrees to provide the Services to the Client during the Term in accordance with these Standard Terms, the Proposal and any Crofti Policies as generated or amended from time to time.

3.2     Relationship

The relationship between the Parties is purely that of an independent contractor, and neither Party will make any claim to the other party or any third party suggesting a relationship of employer and employee, agency or partnership.

3.3     Scope

(a)    The Services to be provided by Crofti are those detailed in the Proposal and any updated Crofti Policies as amended from time to time.

(b)    Additional Services must be agreed in writing with Crofti, prior to being performed.

(c)    Crofti may perform urgent work for the Client when requested without such work being agreed in writing between the Parties prior, on the basis that the Client undertakes to pay for all urgent services requested.  Where urgent work is requested, Crofti will use best endeavours to give an approximate quote for the work, but cannot be held to this quote, given urgent work is generally performed in a situation where the Client needs protection from a virus, hacking, damage from a third party or employee, or some other urgent situation; and the likely work or costing cannot always be ascertained before exploratory work has been performed.

(d)    Training may also be provided by Crofti and this will be considered an Additional Service, to be agreed in writing prior to commencement, and paid in accordance with clause 5.

(e)    Unless agreed between the parties in writing, Crofti is not responsible for the maintenance or upkeep of the Client’s internet sites subject of the Services, unless such work forms part of the Proposal or is requested and agreed as Additional Services.

3.4     Proposal

(a)    For clarity, the Proposal includes these Standard Terms, and will specify, among other things:

(i)     a description of the Services;

(ii)    the Site(s) where the Services will be performed;

(iii)    whether the Services will be performed remotely or in person, or a combination of both;

(iv)   the number of User(s);

(v)    the number of User Seat(s);

(vi)   any services or costs which are specifically excluded in addition to those already excluded in the Crofti Policies;

(vii)   pricing for the Services and any urgent work or services required outside standard business hours; and

(viii)  any special terms.

(b)    The Proposal may be reviewed from time to time to adjust for increase or decrease of Users and change in Client needs, however the contract may only be varied by agreement in writing between the parties.

3.5     Service Standards

(a)    Crofti will use reasonable endeavours to meet the service standards set out in the Crofti Policies as amended from time to time.

(b)    The Client will ensure that it and all of its Users are familiar with the Crofti Policies and comply strictly with the Crofti Policies at all times to aid in protection of the Client’s systems and data.

(c)    Where the Client or a User of the Client does not comply with the Crofti Policies, and this causes urgent work and/or Additional Services, Crofti will use best endeavours to work with the Client to rectify the situation urgently at the Client’s cost.

3.6     Subcontractors

Crofti may delegate the performance of any of the Services to any of its subcontractors, in its discretion.

4.       General obligations

4.1     Client obligations

In addition to any other Client requirements in the Proposal, the Client warrants that it will:

(a)    ensure that its User(s) have the relevant training to enable interaction with Crofti in performing the Services;

(b)    use reasonable endeavours to ensure Crofti is kept informed of changes to the Client’s business operations relevant to these Standard Terms to allow effective planning and scheduling of resources by Crofti;

(c)    use reasonable endeavours to, at its own expense:

(i)     carry out initial error diagnosis and, where applicable, take appropriate corrective action in repeat of known errors;

(ii)    report errors and faults promptly and provide information, including documentation relevant to the diagnosis of such errors and faults;

(iii)    promptly apply all information, documentation and actions advised by Crofti;

(iv)   comply strictly with all Crofti Policies as amended from time to time;

(v)    keep Crofti informed of any extraordinary use made of the products and, if required, supply relevant detailed information on such uses.  This material shall be used only for the purpose of diagnosing faults and shall be treated as confidential; and

(vi)   recreate the circumstances in which a report fault occurred or provide screen captures;

(d)    provide Crofti with all reasonable information and access to its premises, Sites, computer and network systems in order for Crofti to provide the Services;

(e)    use reasonable endeavours to promptly notify Crofti of any event or incidents that is likely to or will impact on the provision of the Services or any other obligation of Crofti (including but not limited to Exceptional Circumstances);

(f)     pay the Service Fee and any other fees and outlays invoiced in accordance with these Standard Terms and the Proposal;

(g)    pay Crofti’s reasonable time and expenses incurred in the provision of such Support Services onsite where requested by the Client or required in an urgent situation as determined by Crofti;

(h)    use reasonable endeavours to comply with the back-up procedures recommended by Crofti; and

(i)     comply with any reasonable direction of Crofti, in order for Crofti to perform the Services and comply with its obligations under the Agreement.

4.2     Service limitations

The Client acknowledges and agrees that:

(a)    Crofti’s ability, and obligation, to provide the Services is subject to the Client complying with its obligations under clause 4.1 and any other limitation or exclusion set out in this Agreement and, if applicable, the Proposal;

(b)    unless otherwise expressly included in a Proposal, the cost of consumables, replacement parts, hardware, software, network upgrades and any associated services are outside the scope of the Services and are the full responsibility of the Client; and

(c)    unless otherwise expressly included in a Proposal, any server upgrades, network device upgrades and software upgrades are outside the scope of this Agreement.

4.3     Crofti obligations

At its own expense, Crofti will at all times use best endeavours to:

(a)    carry out initial error diagnosis and, where applicable, take appropriate corrective action;

(b)    report errors and faults; and

(c)    promptly notify the Client of any event or incidents that is likely to or will impact on the provision of the Services or any other obligation of Crofti (including but not limited to Exceptional Circumstances);

(d)    work with the server host(s) as necessary to rectify issues contemplated in clause 4.3(a). However, Crofti will not be responsible for acts or omissions of the server host(s) or for providing any new software or new hardware (other than as set out in the Proposal or otherwise agreed in writing between the parties) to carry out its obligations under clause 4.3(a); and

(e)    comply with any reasonable direction of the Client for the purpose of enabling the Client to comply with its obligations under the Agreement.

5.       Service Fee and Payment

5.1     Payment

(a)    The Client warrants that it will pay Crofti the Service Fee by close of business on the due date provided on the invoice for such Services, or in the Proposal on the conditions specified therein.

(b)    Where no due date is specified, payment terms will be 7 days from provision of the Services, Additional Services or goods.

5.2     Late or non-payment of invoices

If the Client fails to pay an invoice within the time period referred to in clause 5.1, Crofti may:

(a)    charge the Default Interest Rate as advised at the relevant time by the Queensland Law Society, from the date for payment until the date payment clears in Crofti’s account; and/or

(b)    restrict or suspend the Services in accordance with clause 6 below.

6.       Suspension

6.1     Suspension

(a)    Crofti may temporarily suspend (in part or in whole) the provision of the Services to the Client if:

(b)    Crofti is legally required to do so;

(c)    an event of Exceptional Circumstance occurs, which affects or may affect Crofti’s ability to provide the Services;

(d)    such suspension is as a result of late or non-payment in accordance with clause 5.2; or

(e)    if the Client is otherwise in breach of the Agreement.

6.2     Effect of suspension

Suspension will not affect any right which accrue prior to, or after, suspension or the Client’s obligations under these Standard Terms or in the Proposal, however during the suspended period, no Service Fee is payable given no Services will be performed.

7.       Intellectual Property Rights

7.1     Client Intellectual Property and Technology

(f)     The Client retains all rights to their Intellectual Property and technology at all times, and grants to Crofti a non-exclusive, non-transferable licence to use its Intellectual Property Rights in the Client technology during the Term, but strictly for the purposes of it performing the Services for the Client.

7.2     Crofti IP and Technology

(a)    Crofti retains all rights to their Intellectual Property and technology at all times, and grants the Client a non-exclusive, non-transferable, revocable, royalty free licence (subject to clause 5.1) to its Intellectual Property Rights in the Crofti technology, but only to the extent necessary for the Client to use any deliverable (which deliverable is expressly provided as part of the Services) embodying any such rights.

7.3     Provision and ownership of New IP

(a)    As may be applicable in the course of Crofti providing the Services to the Client, upon its creation all New IP will be:

(i)     owned by, and vest in, Crofti;

(ii)    where applicable, licensed to the Client in accordance with clause 7.2.

(b)    The Client will take all necessary steps and execute all (or procure the execution of all) necessary documents to give effect to the assignment in sub-clause 7.3(a).

7.4     Prohibited activities

(a)    Each Party must not do or permit or omit to do any act which infringes the Intellectual Property Rights of the other Party (or its licensors).

7.5     Notification of infringement claim

Each Party must notify the other Party within three (3) Business Days if it becomes aware of:

(a)    any actual or suspected infringement by a third party of a Party’s Intellectual Property Rights; or

(b)    any actual or threatened Claim by a third party that its Intellectual Property Rights have or will be infringed by any act or omission by a Party in connection with the Agreement.

7.6     Indemnity

Each party is liable for, and agrees to indemnify, and keep indemnified, the other party from and against all Loss incurred or suffered in connection with any claim that the use of any Intellectual Property  provided to the other party in accordance with this clause 7, infringes the Intellectual Property Rights of any third party.

8.       Confidentiality & Privacy

8.1     Disclosure

(a)    A Party must not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

(b)    Each Party must ensure that its employees and agents, and sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other Party’s Confidential Information.

(c)    In particular, Crofti must ensure that all sub-contractors engaged for the purposes of the Agreement sign a confidentiality deed before providing any goods or services as subcontracted obligations under this Agreement.

(d)    A Party is not in breach of this clause 8.1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

(e)    Notwithstanding any other provision of this clause 8.1, the Parties may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

(f)     Each Party must on demand, return to the other Party any Confidential Information supplied by the other Party in connection with the Agreement.

8.2     Security and unauthorised access

(a)    Each Party must ensure that all information and materials of the other Party (or its agents or contractors) in the custody of that Party for purposes connected with the Agreement are protected at all times from unauthorised access or use by a third party, and from misuse, damage or destruction by any person.

(b)    Each Party must ensure compliance with all security regulations or procedures or directions as may be given by the other Party from time to time relating to the Confidential Information or access to the other Party’s Confidential Information.

8.3     Survival and indemnity

(a)    This clause survives the termination of the Agreement.

(b)    Each party agrees to indemnify, and keep indemnified, the other party in relation to all Loss it incurs as a result of the other party’s breach of this clause 8, excluding Consequential Loss.

8.4     Privacy Laws

Each Party agrees to comply with all Privacy Laws in relation to any and all Personal Information that it collects from the other Party, has access to or is made available to it by the other Party in connection with the Agreement.

9.       Liability

9.1     Exclusion of liability

(a)    To the extent permitted by Law, in no event will either Party be liable to the other for Consequential Loss or Loss suffered as a result of an Excluded Event even if that Party has been made aware of the possibility of such Consequential Loss or Excluded Event prior to entering into the Agreement.

(b)    Unless otherwise specified, neither Party is liable to third parties regarding, or arising out of or in connection with, the Agreement.

(c)    The Client acknowledges and agrees that Crofti is not liable to the Client for any Excluded Loss. For the purposes of this clause 9.1(c).

9.2     Implied terms

(a)    To the full extent permitted by Law, any term which would otherwise be implied into the Agreement is excluded.

(b)    In the event any Law implies or imposes terms into the Agreement which cannot be lawfully excluded, such terms will apply, save that the liability of Crofti for breach of any such term will be limited in accordance with clause 9.3.

9.3     Limitation of liability – Re-performance

(a)    To the extent Crofti cannot exclude its Liability but it can be limited under the Australian Consumer Law, its Liability shall be limited (at the option of Crofti) to any one or more of the following:

(i)     re-supplying services to which the Liability relates or the supply of equivalent services; or

(ii)    reimbursing the Client (subject to clause 9.3) for paying someone else to supply the services which the Liability relates.

(b)    Subject to clause 9.4, Crofti’s the liability for any loss or damage suffered or incurred by the other Party in connection with this Agreement is limited to the Fees paid by the Client to the Crofti under this agreement in the 6 months preceding the event giving rise to the liability.

9.4     Viruses

(a)    The Client must use all reasonable precautions to prevent Virus Events.

(b)    Where the Client has complied with the Crofti Policies and clause 4, but such Virus Events have incurred nonetheless, Crofti will work closely with the Client at no extra cost (including out-of-hours where critically necessary) to assist the client to recommence operation.

(c)    Crofti will at no time pay on behalf of a client any extortion fees, ransom demands or fines to any third party, nor is Crofti liable to claim under their own insurance policy for issues not caused by Crofti’s direct negligence, where the Client’s insurance policy has failed to pay out or where the Client has failed to maintain the relevant insurance.

10.     Indemnity

10.1   Indemnity

(a)    The Client indemnifies, and will keep indemnified, Crofti against any claims, loss (other than consequential loss), damages, fines, and damage to reputation instigated by a third party directly or indirectly as a result of negligent acts or omissions of the first party or its User(s), staff, agents and contractors.

(b)    The parties indemnify, and will keep indemnified, one another against any Loss arising from:

(i)     breach of these Standard Terms (including where caused or contributed to by that party’s staff, agents, and/or contractors);

(ii)    property damage (other than data loss); or

(iii)    personal injury or death of any person.

(c)    The liability of one party to indemnify the other party shall be reduced proportionally to the extent that any act, omission or negligence of a party, its employees, contractors or agents (as the case may be) has contributed to the loss or damage.

10.2   Insurance

Crofti will maintain:

(a)    all insurances required by law, including workers compensation insurance;

(b)    public liability insurance for an amount of not less than $5 million per claim;

(c)    product liability insurance for an amount of not less than $5 million per claim and in the aggregate; and

(d)    professional indemnity insurance for an amount of not less than $5 million per claim and in the aggregate.

11.     Termination

(a)    Either Party may terminate the Agreement immediately by written notice upon the occurrence of one of the following events:

(i)     if the other Party is in breach of this Agreement and that other Party has failed to remedy that breach within sixty (60) days of a written notice to it from the first-mentioned Party, specifying the breach and requiring it to be remedied;

(ii)    if the other Party is in breach of this Agreement and that breach is not capable of remedy; or

(iii)    an Insolvency Event occurs in respect of the other Party.

(b)    The Agreement may be terminated by the mutual written agreement of the Parties.

(c)    Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either Party.

(d)    The following clauses survive termination of the Agreement: Clause 7 (Intellectual Property Rights), Clause 8 (Confidentiality), Clause 9 (Liability), Clause 10 (Indemnity), Clause 14.2 (Poaching), Clause 12  (Consequences of Termination), and this clause 11.

12.     Consequences of Termination

Upon termination or expiration of this Agreement:

(a)    Crofti will discontinue providing the Services and any Additional Services;

(b)    all money due by the Client to Crofti under any Proposal or invoice, or otherwise, must be paid in full along with any interest owing and cost incurred under an indemnity or warranty breach within this Agreement;

(c)    each Party must return to the other Party or (if requested by the other Party) destroy, all Confidential Information belonging to the other Party;

(d)    Crofti must provide the Client with all of the Client’s data and software in a useable form, to be determined by Crofti acting reasonably, within a reasonable period of time, not exceeding 10 Business Days.

(e)    the Client acknowledges and agrees that where this Agreement is terminated because the Client is or has been subject to any Insolvency Event, Crofti will not be required to provide to the Client any further services under this Agreement (including services such as data extraction), unless:

(i)     Crofti has otherwise agreed to provide such services; and

(ii)    such services are provided at Crofti’s then current standard time and materials rates.

13.     Notices

13.1   Form of Notice

(a)    Any notice or other communication to or by any party must be:

(i)     in writing and in the English language;

(ii)    addressed to the address of the recipient in the Proposal or to any other address as the recipient may have notified the sender; and

(iii)    be signed by the party or by an authorised officer of the sender.

14.     Miscellaneous

14.1   No assignment

A Client must not assign, transfer or novate all or any part of its rights or obligations under or relating to the Agreement or grant, declare, create or dispose of any right or interest in it, without the prior written consent of Crofti.

14.2   Poaching

The Client must not during any of the Restraint Periods:

(a)    canvass, solicit or entice away;

(b)    or attempt to canvass, solicitor or entice away,

any employee or contractor of Crofti or its associates, without the prior written consent of Crofti, such consent may be conditional upon the payment of compensation.

14.3   Severability

If a provision of the Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of the Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.

14.4   Further assurance

Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to the Agreement and the transactions contemplated by it.

14.5   Force Majeure

(a)    If a Party (Affected Party):

(i)     is prevented from, or delayed in, performance an obligation (other than an obligation of the Client to pay money) by an event of Exceptional Circumstance; and

(ii)    the Affected Party as soon as possible after the event of Exceptional Circumstance notifies the other Party providing particulars of:

(A)     the event of Exception Circumstance;

(B)     the anticipated period of delay; and

(C)     the action (if any action is reasonably possible) the Affected Party intends to take to mitigate the effect of the delay,

then those obligations of the Affected Party are suspended for the duration of the event of Exceptional Circumstance.

14.6   Jurisdiction

The Agreement is governed by and construed in accordance with the laws of Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.

14.7   Obligation on other Party

The Party which is not the Affected Party must use all reasonable endeavours to remove or mitigate its Loss arising from, and the effects of, the event of Exceptional Circumstance.

14.8   Termination

If Exceptional Circumstances prevent an Affected Party from performing an obligation for a period of 30 days or more, then the other Party may terminate this Agreement.

14.9   Waiver

A party’s waiver of a right under or relating to the Agreement, whether prospectively or retrospectively, is not effective unless it is in writing and signed by that party.  No other act, omission or delay by a party will constitute a waiver of a right.

14.10 No Representation or Reliance

(a)    The Client acknowledges that neither Crofti nor any person acting on behalf of Crofti has made any representation or other inducement to it to enter into this Agreement;

(b)    Without limiting the generality of clauses 14.10(a) you understand and hereby confirm that:

(i)     your decision to enter into this Agreement was, and is, not based on any promise, representation, statement, warranty or undertaking made or given by us or any person on its behalf in relation to the capacity, uses or benefits that might or would be derived or obtained from the Services, except as expressly set out in this Agreement; and

(ii)    you have relied on your own skill and judgement in deciding to enter into this Agreement.

15.     Definitions and interpretation

15.1   In this Agreement:

(a)    “Additional Services” means any services, including but not limited to any services provided on a time and materials basis, provided to the Client which are not expressly included in the Proposal and have not been included in the Service Fee, will be charged to the Client in accordance with the rate card, unless otherwise agreed to by the Parties in writing.

(b)    “Agreement” means the following documents which together form the Agreement:

(i)     These Standard Terms;

(ii)    All Crofti Policies provided on Crofti’s website as amended from time to time at www.crofti.com.au/policies;

(iii)    The Proposal; and

(iv)   Any other document forming part of the Agreement as agreed to in writing by the Parties.

(c)    “Business Day” means a day other than a Saturday, Sunday or public holiday in the relevant State or Territory.

(d)    “Business Innovation Consulting” includes, but is not limited to coordinating with the existing business of the Client to optimise, automate, streamline and improve the overall operations and efficiency of the business where possible.

(e)    “Client / you / your” means the person, company or organisation we issue a quote or Proposal or invoice, or who places a request for a quote or fee proposal to engage our Services.

(f)     “Commencement Date” the date in which you accept our Proposal.

(g)    “Confidential Information” means any and all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought to be considered confidential based on its content, nature or the manner of its disclosure, but excluding information:

(i)     entering the public domain or disclosed to a party by a third party; and

(ii)    developed independently by a party.

(h)    “Consequential Loss” means any loss, which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into the Agreement, including any loss arising from an interruption to a business or activity, revenue, profits, anticipated savings, opportunity to profit and grow the business, and any special, punitive or exemplary damages.  Loss of data to the extent that such loss of data is caused directly by Crofti is excluded.

(i)     “Commencement Date” means the date at which this Agreement comes into effect.

(j)     “Crofti Policies” means all policies provided on Crofti’s website as amended from time to time at www.crofti.com.au/policies.

(k)    “Default Interest Rate” means the standard contract default interest rate as published by the Queensland Law Society.

(l)     “End of Term Notice” means a notice issued by you to Crofti in writing indicating that you would like to terminate the Agreement.

(m)   “Exceptional Circumstances” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under the Agreement. Such circumstances include, but are not limited to, the following:

(i)     adverse changes in government regulations;

(ii)    any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;

(iii)    acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and/or

(iv)   acts or omissions of any network providers (such as internet, telephony or power provider).

For clarity, any act or omission of a party’s subcontractor or agent is not outside of the control of that party.

(n)    “Excluded Event” means the following, and will not be covered by the Support Services:

(i)     Scheduled maintenance (Clients will be provided with at least 2 Business Days prior Notice before any scheduled maintenance is undertaken by Crofti);

(ii)    performance issues relating to firmware updates, upgrades, revisions to third party software or hardware;

(iii)    events of Exceptional Circumstances; and

(iv)   faults, service outages or disruptions caused by the wilful or negligent acts of the Client and its Personnel, the server host(s) or third-party equipment, software or Networks.

(o)    “Excluded Loss” means any Loss suffered by the Client that is caused by any server host or a server host’s employees or subcontractors.

(p)    “Expiry Date” means the date this Agreement is scheduled to conclude as specified in the Proposal.

(q)    “Insolvency Event” means an event where a Party:

(i)     Commits an act of bankruptcy or an act of insolvency;

(ii)    Becomes bankrupt

(iii)    Goes into administration, liquidation or receivership;

(iv)   Assigns assets for the benefit of creditors generally; or

(v)    Makes a composition or other arrangement with creditors.

(r)     “Intellectual Property” means all intellectual property rights whether registered or unregistered and whether existing under statute, at common law or in equity throughout the world including, without limitation:

(i)     all trademarks, trade names, logos, symbols, get up, brand names or similar rights, registered or unregistered designs, patents, copyright, circuit layout rights, trade secrets and the right to have confidential information kept confidential;

(ii)    any application or right to apply for any of the rights referred to in paragraph (a) above;

(s)    “Intellectual Property Rights” means any patent, registered design, trademark or name, copyright or other protected right.

(t)     “Loss” means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

(u)    “New IP” means any new intellectual property which comes into creation during the course of Crofti providing Services to the Client.

(v)    “Notice” means written notice in accordance with clause 13 of this Agreement.

(w)   “Party” means a party to this Agreement.

(x)    “Personal Information” has the same meaning as in the Crofti Privacy Policy and means information that can be associated with a specific person and can be used to identify that person and includes your information. Information that has been made anonymous or aggregated so that it cannot be used, whether in combination with other information or otherwise, to identify a specific user is not personal information.

(y)    “Proposal” means the proposal document provided to you by us which includes the scope of the Services required to be provided by Crofti to the Client, as well as the licence limitations and Service Fee applicable to carry out the Services, as amended by the Parties from time to time in writing.

(z)     “Restraint Period” means the period commencing on the cessation of the Term and continuing uninterrupted for 24 months unless, in a court of competent jurisdiction it is determined that 24 months is too long, such that any restraint provision in this agreement is unenforceable in which event it means, in respect of each restraint provision, the longest of the following periods to have an enforceable effect:

(i)     18 months;

(ii)    12 months;

(iii)    6 months;

(iv)   3 months; and

(v)    1 month

(aa)  “Services” means the services which are supplied by Crofti to the Client during the Term which may include Support Services and/or Business Innovation Consulting or other services outlined in our Proposal.

(bb)  “Service Fee” means the applicable fees associated with the respective Services under this Agreement, as amended by the Parties from time to time in writing

(cc)  “Site” means the physical location or premises of the Client which Crofti may be required to physically attend in order to properly perform the Services in accordance with this Agreement.

(dd)  “Standard Terms” means these terms for the supply of Services to you, as amended from time to time and which form part of the Agreement.

(ee)  “Support Services” means the unlimited IT Support outlined in the Proposal which can include any of the following unlimited IT support (per person / month), basic security, Crofti monitoring, credential monitoring (minimum 10 people), advanced firewall maintenance (minimum 10 people) and cloud backup.

(ff)    “User” means an end user of the Client who will interact with the Client’s systems, the subject of which Crofti will be performing the Services for. A single User may operate multiple devices.

(gg)  “User Seat” means the amount of physical devices Crofti is required to perform Services for.

(hh)  “Virus Events” means software contamination, and diffusion of software contamination, including computer viruses, worms and trojans.

(ii)    “We / us / our / Crofti” means Crofti Pty Ltd ACN 169 326 514.

16.     Interpretation

In this Agreement, unless the context otherwise requires:

(a)    Reference to persons shall include bodies corporate, trusts, partnerships and Government and semi-Government authorities and departments;

(b)    Reference to legislation, statutes, regulations or by-laws shall extend to all statutes, regulations or by-laws amending, consolidating or replacing them;

(c)    Words importing any gender include every gender; words importing the singular include the plural (and vice versa); references to writing include typing, telex and all other means of reproducing words in a visible form; and references to “months” means calendar months

(d)    All Schedules and Annexures referred to in this Agreement form part of and should be read with this Agreement, unless a contrary intention appears.

CROFTI PRIVACY POLICY

1.               BACKGROUND

CROFTI Pty Ltd ACN 169 326 514 and its related entities (‘Crofti / we / us’) is an IT Support and Consulting business that specializes in delivering innovation and technology with business focused outcomes. At Crofti, it is important to us that we manage your personal information securely and consistently with relevant legislation, including the Privacy Act 1988 (Cth) (‘Privacy Act’) as well as the Credit Report Privacy Code (‘Code’).

This privacy policy (Privacy Policy) outlines how we collect, store, use, protect and share your personal information. It applies to our website (crofti.com.au) and all related websites, applications, services and tools (together the Website). By visiting or using the Website you agree to the collection, storage, usage and disclosure of your personal information by Us in the manner described in this Privacy Policy. Unless we obtain your written consent, we will not sell, disclose, licence or rent your personal information to a third party for that third party’s marketing purposes.

We reserve the right to amend this Privacy Policy at any time by posting the amended terms on the Website. If we make material changes to this policy, we will notify you by means of a notice on our announcements board and/or other means so that you access and review the changes. If you object to any changes, you may close your account or discontinue communication with us. By continuing to use the Website after notice of changes has been sent to you or published on the Website, you are deemed to have consented to the changes.

2.               APPLICATION OF THIS PRIVACY POLICY

2.1             In Australia, we are governed by the Australian Privacy Principles (‘APPs’) under the Privacy Act. In our interactions with you, we also comply with Credit Reporting Privacy Code requirements. These set out the way organisations and government agencies can collect and use, disclose and provide access to personal and sensitive information.

(a)             Personal information is information that identifies or could identify a person, whether it is true or not. It may include, for example, your name, age, gender, profile picture, contact details, bank account details and financial information.

(b)             Sensitive information as defined by the Privacy Act (as amended) is also personal information but relates to your opinions, views, racial or ethnic origin, political options or affiliations, religious beliefs, philosophical beliefs, membership of a professional or trade association, membership of a trade union, sexual preferences or practices or criminal record or health, genetic, biometric information or biometric templates.

(c)              Credit Information as defined in the Privacy Act is personal information about an individual (other than sensitive information) relating primarily to your credit-related dealings which can be disclosed to Credit Reporting Bodies (‘CRBs’) that report on consumer credit worthiness and includes:

(i)               identification information about the individual; or

(ii)              consumer credit liability information about the individual; or

(iii)             repayment history information about the individual; or

(iv)             a statement that an information request has been made in relation to the individual by a credit provider, mortgage insurer or trade insurer; or

(v)              the type of consumer credit or commercial credit, and the amount of credit, sought in an application:

A.                     that has been made by the individual to a credit provider; and

B.                     in connection with which the provider has made an information request in relation to the individual; or

(vi)             default information about the individual; or

(vii)           payment information about the individual; or

(viii)          new arrangement information about the individual; or

(ix)             court proceedings information about the individual; or

(x)              personal insolvency information about the individual; or

(xi)             publicly available information about the individual:

A.                     that relates to the individual’s activities in Australia or the external Territories and the individual’s credit worthiness; and

B.                     that is not court proceedings information about the individual or information about the individual that is entered or recorded on the National Personal Insolvency Index; or

(xii)           the opinion of a credit provider that the individual has committed, in circumstances specified by the provider, a serious credit infringement in relation to consumer credit provided by the provider to the individual.

2.2             We respect your personal information, and this Privacy Policy explains how we manage it. This Privacy Policy covers Crofti and all of its related companies.

2.3             Notwithstanding any references or specific examples in this Privacy Policy, those examples are not to be taken as an exhaustive list of personal information collected by us.

2.4             You understand that many online software packages including, but not limited to, Google and Xero, store data in facilities which may not be wholly or in part, based on Australian shores, and therefore may not fall under the jurisdiction of the Australian Privacy Principles.  We and any third parties or software providers we engage now and in the future, will take all reasonable steps to provide for the security of such stored data to the extent possible and act in accordance with the terms as provided by those third parties and software packages.  You may refuse to work with us where you deem the risk of data breach to be greater than the convenience and cost effectiveness of the solution provided.  To disengage our services, please notify us in writing and we will take measures to remove your details from our system.

3.               HOW WE COLLECT INFORMATION

3.1             Examples of where we might collect personal or sensitive information include:

(a)             when you visit our website, create a user account, and / or use our online services;

(b)             when you visit us in person;

(c)              when entering into an agreement with us for the supply of services;

(d)             when you correspond or communicate with Crofti or our agents over the telephone or in any other manner, including by letter, facsimile or email;

(e)             providing your credit card information to facilitate payment;

(f)               using your internet service provider or mobile network to connect to our services;

(g)             when we assess your eligibility for our services;

(h)             if you connect with us via a social network;

(i)               when you complete a customer survey or send us feedback;

(i)               in administering your account, including requests and the provision of our services.

4.               WHAT WE COLLECT

4.1             We collect the following types of personal information in order to provide you with access to and use of the Website and for the purposes provided for in this Privacy Policy:

(a)             your name, phone number, mobile telephone number, email address, physical address and other contact information;

(b)             your Australian Business Number (ABN);

(c)              your employment history (which may include sensitive information), if you apply for a job with us;

(d)             other employment-related information, if you apply for a job with us; and

(e)             feedback, market research and opinion polls provided by you;

(f)               financial information such as credit card or bank account numbers provide by you;

(g)             records and content of communications with Us or any other person including when using Website communication tools;

(h)             personal information based on your activities on the Website;

(i)               personal information you provide to us through any discussions boards, correspondence, user information pages, disputes, or shared by you from other social applications, services or websites;

(j)               to the extent permitted by law, other personal information provided by or obtained from third parties (such as a credit bureau) including navigation and demographic data and credit check information;

(k)              additional personal information we ask you to provide to verify your identity or when we suspect that you are in breach of our Standard Terms, this Privacy Policy or other Website policies (including your personal ID and your answers to any questions we pose to you); and

(l)               personal information from your interaction with the Website and its content and advertising, including device identifiers, device type, geo-location information, connection information, statistics on page views, traffic to and from the Website, mobile network information, time, date, referring URL, the type of operating system and browser, ad data, IP address and standard web log data.

5.               WHY WE COLLECT AND USE PERSONAL INFORMATION

5.1             Crofti takes your personal privacy seriously. We may collect personal information about you for various reasons, for example:

(a)             Because you have provided it directly to us, for instance contact details, date of birth and credit card details or bank account details;

(b)             To operate the Website, generate content and provide customer support and billing services (including updates and improvements);

(c)              To provide you with the most appropriate services for your needs;

(d)             To provide you with information via blogs, general email and online correspondence and newsletters;

(e)             To research, develop and improve Our services;

(f)               To conduct surveys to determine use and satisfaction with Our services;

(g)             To generate statistics in relation to the Website;

(h)             To detect, investigate and prevent potentially unlawful acts or omissions or acts or omissions with the potential to breach our Standard Terms, this Privacy Policy or other policies;

(i)               To enforce our Standard Terms, this Privacy Policy or other policies;

(j)               To verify information for accuracy or completeness (including by way of verification with third parties);

(k)              To combine or aggregate your personal information with information we collect from third parties and use it for the purposes set out in this Privacy Policy;

(l)               To contact you at your contact details we have collected, by way of voice call, post, text message or email;

(m)            To aggregate and/or make anonymous your personal information, so that it cannot be used, whether in combination with other information or otherwise, to identify you;

(n)             To collect fees, resolve disputes and to identify, test and resolve problems;

(o)             To notify you about the Website and updates to the Website from time to time; or

(p)             To supply you with generalised, targeted or personalised marketing, advertising and promotional notices, offers and communications based on your preferences, and measure and improve our marketing, advertising and promotions based on your ad customisation preferences.

5.2             We only use your personal and sensitive information for purposes which are directly related to the reason you provided us with your information in the first place and where you would reasonably expect us to use your information.  This may include sharing your personal or sensitive information with service providers.

5.3             We may share your information with government or regulatory bodies as required or authorised by law.  These agencies may also share this information with organisations or agencies in other jurisdictions.

6.               DISCLOSURE OF PERSONAL INFORMATION

6.1             Disclosure of personal information to third parties

We will not disclose your personal information to another person unless you have given consent or if one of the exceptions under the Privacy Act applies.  Where possible, the information that could reasonably identify you as an individual is first removed.

6.2             Exceptions

(a)             Except as set out above, Crofti will not disclose your information to a third party unless one or more of the following applies:

(i)               you have given your consent for us to do so;

(ii)              you would reasonably expect us to use or give that information for another purpose related to the purpose for which it was collected (or in the case of sensitive information – directly related to the purpose for which it was collected);

(iii)             it is otherwise required or authorised by law;

(iv)             it will prevent or lessen a serious threat to somebody’s life, health or safety or to public health or safety;

(v)              it is reasonably necessary for us to take appropriate action in relation to suspected unlawful activity, or misconduct of a serious nature that relates to our  functions or activities;

(vi)             it is reasonably necessary for us to enforce our Standard Terms, this Privacy Policy and other policies;

(vii)           We are required to comply with any applicable law, request by a governmental agency or regulatory authority or legally binding court order;

(viii)          We are required to respond to or resolve claims that a member has violated the rights of others;

6.3             Examples of disclosure

(a)             Customer Records

(i)               Crofti maintains records of all customers including financial information which may need to be shared with financial institutions, government or regulatory bodies from time to time.

(b)             Credit Reporting

(i)               We may disclose personal information about you to a CRB in relation to any credit-related dealings with us.  That information may be included in reports by the CRB to other credit providers or to another CRB to help them assess applications by you for credit.

7.               DISCLOSURE OF INFORMATION TO THIRD PARTIES OVERSEAS

We may disclose personal information to overseas based organisations or agencies in the provision and/or administration of your account.  We undertake to protect your personal information by ensuring the country of the overseas based organisation or agency has similar protections in relation to privacy, or that we enter into contractual arrangements with the organisation or agency to ensure the protection of your privacy.

8.               CAN I REMAIN ANONYMOUS?

8.1             It is your choice to provide information to us. Wherever it is lawful and practicable, you have the option not to identify yourself or to use a fictional name when interacting with us. You can remain anonymous when using some parts of our website, or sites administered by us.

8.2             It may be necessary for us to collect your personal or sensitive information if you would like certain services. If you choose to withhold the information we require, we may not be able to provide you the services you have requested.

9.               STORAGE AND SECURITY

9.1             We store your information in a number of ways including physically (such as in paper form) or electronically with third party data storage providers. Your privacy and the security of your information is very important to us so where we store your information with third party providers, we will enter into contractual arrangements with those providers to ensure they take appropriate measures to protect your information.

9.2             We take appropriate steps to protect your personal and sensitive information held by us from misuse, interference, unauthorised access, modification, loss or disclosure. This includes during storage, collection, processing and transfer and destruction of the information.  These steps include but are not limited to:

(a)             ensuring our computer systems and websites have security systems in place such as up to date firewall and data encryption;

(b)             maintaining security systems and monitoring of our premises;

(c)              implementing confidentiality agreements with our employees and contractors, sub-contractors, service providers and their agents;

(d)             requiring all employees and contractors who handle, deal or work with personal or sensitive information in the course of their duties with us to undergo training on our Privacy Policy and procedures and information and data storage management, before undertaking those duties

(e)             maintaining document storage security policies and procedures; and

(f)               implementing verification procedures for all inquiries/transactions to ensure only authorised people can access personal information.

9.3             Our website may contain links to external websites. We recommend that you review the privacy policies of those external websites as we are not responsible for their privacy practices.

10.             HOW TO ACCESS AND CORRECT YOUR PERSONAL INFORMATION

10.1          We will take reasonable steps to ensure that all personal information we collect, use or disclose is accurate, up-to-date, complete, relevant, and not misleading.

10.2          We will correct any personal information that we believe to be incorrect, out-of-date, incomplete, irrelevant or misleading. This may include taking reasonable steps to notify any organisation or government agency to which information was disclosed about the correction. You may request to access or correct your personal information at any time by contacting the Privacy Officer using the contact details below. We will give you access to your information unless one of the exceptions under the Privacy Act applies. For example, if providing access would be unlawful or denying access is authorised by law.

10.3          If you request to access or correct your information, we will respond within a reasonable time (usually within 30 days). If your request is refused, we will give you a written notice that sets out the reasons for refusal and how to complain about the decision.

11.             DIRECT ACCESS AND PROMOTIONAL MATERIALS

11.1          From time to time, we may send out promotional materials and information from government departments or other third parties. If you do not wish to receive these communications, please contact us to unsubscribe from that mailing list.

11.2          Your information may also be used by us to provide you with details of other organisation’s services where permitted by the Privacy Act or where you have consented to the use or disclosure of your personal information for direct communications and promotional materials.

11.3          It is our policy that any direct communications or promotional material will include a statement advising that you can request to not receive further material from us by contacting us using the details provided. Please note that if you choose this option this will also prevent you receiving offers of discounts as well as all promotional and informational materials.

12.             COOKIES

12.1          We (or a third-party providing services to Us) may use cookies, pixel tags, “flash cookies”, or other local storage provided by your browser or associated applications (each a Cookie and together Cookies). A Cookie is a small file that stays on your computer or device until, depending on whether it is a sessional or persistent cookie, you turn your computer or device off or it expires (typically between 7 and 30 days depending on user settings).

12.2          Cookies may be used to provide you with our range of services including to identify you as a user or member of the Website, remember your preferences, customise and measure the effectiveness of the Website and our promotions, advertising and marketing, analyse your usage of the Website, and for security purposes.

12.3          Cookies may collect and store your personal information. This Privacy Policy applies to personal information collected via cookies. Information we may collect includes:

(a)             your computer’s IP address;

(b)             your domain name;

(c)              the date and time or access to the website;

(d)             pages accessed and documents downloaded;

(e)             the previous site visited;

(f)               if you have visited the website before;

(g)             the type of browser software in use;

(h)             your mobile carrier; and

(i)               device information including device and application ID.

12.4          You may adjust your internet browser to disable cookies. If Cookies are disabled, We may not be able to provide you with the full range of Our services.

12.5          You also may encounter Cookies used by third parties and placed on certain pages of the Website that we do not control and have not authorised (such as webpages created by another user). We are not responsible nor liable for the use of such Cookies.

12.6          The Website may also include links to third party websites (including links created by users or members) and applications and advertising delivered to the Website by third parties (Linked Sites). Organisations who operate Linked Sites may collect personal information including through the use of Cookies. We are not responsible nor liable for Linked Sites and recommends that you read the privacy policies of such Linked Sites before disclosing your personal information.

13.             NO SPAM, SPYWARE OR SPOOFING

13.1          You are prohibited from engaging in spam, spyware or spoofing type activities, regardless of whether directed towards Us or other users of Us.

13.2          You must not use the Website to send, upload or distribute spam, viruses or malicious, illegal or prohibited content to the Website or otherwise send content that would breach our Standard Terms or this Privacy Policy.

13.3          You are not permitted to add a user or member to our mailing list (postal or email details included) without the written consent of a user or member.

13.4          We may (or we may engage a third-party service provider to) take steps to scan and filter messages to check for spam, viruses, phishing attacks and other malicious activity or unlawful or content prohibited by this Privacy Policy and our Standard Terms.

13.5          To report spam, spyware or spoof activities to Us, please email us on the details below.

14.             UPDATES TO OUR PRIVACY POLICY

14.1          We will update our Privacy Policy from time to time, Our website will have the most current Privacy Policy.

15.             OPTING OUT

15.1          You may withdraw your consent to us collecting, storing, using and disclosing your personal information in accordance with this Privacy Policy, but you may not be permitted to continue to use the Website or some of our services.

15.2          You may opt out of receiving our marketing, advertising and promotional notices, offers and communications by communicating this to us in writing at the email address below.

16.             COMPLAINTS AND ENQUIRIES

16.1          We are committed to the protection of your privacy. If you have any questions about how we handle personal information, would like to complain about how we have handled your information, or would like further information about our Privacy Policy, please submit a written query or complaint to ‘info@paybae.com.au’. Our Privacy Officer will assess any complaints and liaise with you to resolve any issues within a reasonable time.

16.2          If you consider your privacy concerns have not been resolved satisfactorily by us, or you wish to obtain more information on privacy requirements, you can contact The Office of the Australian Information Commissioner on 1300 363 992 or visit their website at www.oaic.gov.au.

17.             CONTACT US

If you have a question regarding this Privacy Policy, would like to amend your Personal Information stored securely by us or you would like to make a complaint, please contact the Privacy Manager at:

Email:             info@crofti.com.au

Phone:           +61 7 3067 0001

Address:        Level 3, Cameron House, 354 Brunswick Street, Fortitude Valley QLD 4006

BACKUP POLICY AND PROCEDURES

DATTO

SAAS

SAAS PROTECTION POLICY

This standard retention policy applies to SaaS Protection 2.0 Products only. Earlier versions of the Product may have different retention features.

We will retain Backedup Data in your account as long as you maintain an active Subscription for which payments are current. After an initial full backup, all subsequent backups are incremental and capture only changes made since the previous backup. According to the schedule set forth below, incremental backups are pruned on rolling basis and we retain only the remaining backups from the point in time indicated.

Pruning of Incremental BackupsTakes Place After:Backups Retained:
Intra-dailies30 days30 days of intra-daily backups
Dailies90 days90 days of one daily backup
Weeklies365 days365 days of one weekly backup
MonthliesSet by the customerOngoing monthly backup

 

Although we do not limit any customer or user to a pre-defined amount of cloud storage, we reserve the right to limit Product usage or cloud storage if we determine there is activity or usage that: (i) results in excessive bandwidth or storage usage; or (ii) harms, disrupts, or otherwise diminishes our brand, services, network, or any computer system.

SAAS PROTECTION TERMS OF USE

Last updated May 2018

These SaaS Protection Terms of Use (“Terms of Use” or “Terms”) describe the terms under which Datto, Inc. or one of its direct or indirect subsidiaries (“Datto” or “we or “us”) provides access to and use of SaaS Protection products (referred to in these Terms of Use as the “Product” or “Products”). Capitalized terms not defined elsewhere in these Terms will have the meanings set forth in the last section.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING “I AGREE”, BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR BY INSTALLING, ACCESSING OR USING ANY PRODUCT YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE, INCLUDING APPLICABLE POLICIES REFERENCED THROUGHOUT. IF YOU ACCEPT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS OF USE AND “YOU” WILL REFER TO THAT LEGAL ENTITY AND ITS AFFILIATES.

If You accept these Terms of Use solely as a third party Product Administrator (not as a direct Customer) managing or using any Product on behalf of a Customer, You represent and warrant that You are acting as an agent of the Customer and You have the full authority to agree to these Terms of Use with respect to access, use and support of the Product and Backedup Data. You agree to obtain Customer’s authorization and comply with Customer’s instructions at all times with respect to use of the Product and access to and management of Backedup Data, transition of Product or Backedup Data to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an Administrator, Customer and us.

If You do not agree to these Terms of Use, You may not use the Product.

    1. ORDERS
      1. These Terms of Use are incorporated into each Order for the Product. Unless otherwise specified, Customer will receive the current standard Product features and functionality (such as number and frequency of backups or retention schedule) for the standard Subscription Term described in the current Policies for the Product, for the number of Users and/or data allotment specified in an Order.
    2. FREE TRIAL
      1. If the Product is being used during a free trial, these Terms of Use (except for payment obligations) will apply for the purpose and term of such authorized evaluation or trial period only. We reserve the right to terminate any such evaluation use of the Product at any time in our sole discretion. ANY BACKEDUP DATA SAVED DURING A FREE TRIAL WILL BE PERMANENTLY DELETED FOLLOWING THE TRIAL PERIOD UNLESS A PAID ORDER IS PLACED FOR THE SAME PRODUCT. CUSTOMER MAY EXPORT BACKEDUP DATA PRIOR TO THE END OF THE TRIAL.
      2. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF USE, ALL PRODUCT FOR A FREE TRIAL USE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive all claims, now known or later discovered, against us arising out of use of any Product for a Free Trial.
    3. USE OF PRODUCTS
      1. Subject to these Terms of Use and receipt by us of all fees applicable to the Product, we hereby grant a limited, revocable, non-sublicensable, non-exclusive right to access and use the Product during the Subscription Term for the number of Users and /or the applicable data storage allotment set forth in an Order. Customer may use the Product solely for internal business purposes and not for further resale or distribution.
      2. Each Product is licensed, not sold. The Product contains material that is protected by copyright, patent and trade secret law of jurisdictions throughout the world, and by international treaty provisions. Except for the limited rights granted in these Terms of Use, we and our licensors retain all right, title, interest and Intellectual Property Rights in the Product.
      3. We reserve the right at any time to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to Specifications, features and functionality. We will use reasonable commercial efforts to provide You notice of any material changes by updating relevant information in the applicable Online Portal.
      4. We may designate enhancements to a Product or a new Product as “Beta Product” that we may make available at no charge. Such Beta Product will not be ready for use in a production environment and its operation may be unpredictable and lead to erroneous results. You are under no obligation to use a Beta Product. If You choose to use a Beta Product, You agree the Beta Product (i) is experimental and has not been fully tested; (ii) may not meet Your requirements; (iii) use or operation may not be uninterrupted or error free and is for purposes of evaluating and testing the product and providing feedback to us. You agree to report promptly to us any errors or other deficiencies in the Beta Product and will hold all information relating to use and performance of the Beta Product in strict confidence and not disclose such information to any unauthorized third parties. Use of any Beta Product is otherwise subject to these Terms of Use. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF USE, ALL BETA PRODUCT IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive all claims, now known or later discovered, that You may have against us and our suppliers and licensors arising out of use of any Beta Product.
      5. Additional Data Processing Terms. A Product may be configured to designate the geographic region where Backedup Data associated with the Product is stored. The European Data Processing Addendum is incorporated into these Terms of Use if a Product is configured to store Backedup Data in the European Economic Area.
    4. RESTRICTIONS ON PRODUCT ACCESS AND USE
      1. You may not nor may You permit, facilitate or authorize any third party to: (i) use any Product other than as permitted under these Terms of Use; (ii) remove or destroy any copyright or other proprietary markings for a Product or its Specifications; (iii) access or use any Product in any manner that could damage, disable, or overburden such Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract source code from any Product, except to the extent this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Product; (vi) alter any disabling mechanism which may reside in a Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Products, or directly or indirectly permit any unauthorized party to use or copy the Product; (viii) conduct or disclose the results of any form of benchmarking of a Product; (ix) extract any software for use in other applications; or (x) access a Product to (1) build a competitive product or service; (2) copy any, or build a product using, ideas, features or graphics sourced from the Product.
      2. Use of the Products and Backedup Data must at all times be in compliance with all Applicable Laws. The Products and Backedup Data may not (i) be used to send any unsolicited commercial email or invitation in violation of Applicable Law; (ii) be used to process or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any Applicable Law; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise in violation of Applicable Law; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used to transmit any viruses or similar malicious software that may damage the operation of any computer, network, system or the Products; or (vii) violate the terms of use of the Backedup Site or any other agreement.
      3. If we reasonably believe any Product use or Backedup Data: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Products; or (iii) may otherwise subject us to liability, we reserve the right to refuse or disable access to the Product or Backedup Data. We may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. We will use reasonable efforts to contact an Administrator prior to taking such action. However, we may restrict access to any Product or Backedup Data without prior notice as necessary to comply with Applicable Law or to protect against damage or security threats. If we take any such action without prior notice, we will later provide notice to an Administrator, unless prohibited by Applicable Law.
    5. BACKEDUP DATA
      1. Customer represents and warrants it has all rights (including from Backedup Sites and Users) as necessary to permit access, copying and use of Backedup Data with the Product. Customer is responsible for the accuracy, quality and legality of the Backedup Data, and the means by which Customer acquired rights to the Backedup Data for use with the Product. For purposes of this Agreement, Backedup Data is the property of Customer, not any User, and we are under no obligation to inform Users that Customer controls such information with us.
      2. Customer, for itself and its Users, authorizes us to access and interact with the Backedup Site to retrieve Backedup Data and grants us a limited, royalty-free, non-exclusive, assignable license to use, copy, reformat, display, disclose and distribute the Backedup Data solely for providing the Product as described in these Terms of Use, including as authorized by an Administrator for support, and as described in our Privacy Policy.
      3. Customer retains all its right, title and interest in and to the Backedup Data, and we neither own nor acquire rights in the Backedup Data other than the rights expressly granted under this Agreement.
      4. We will use physical, technical and administrative safeguards, consistent with commercially reasonable industry practices, designed to secure the confidentiality, integrity and availability of Backedup Data under our control against accidental or unauthorized loss, access or disclosure. We use the same safeguards for all Backedup Data, regardless of its nature or contents. We are a processor and not a controller of all Backedup Data.
      5. Customer must maintain authorization and access to the Backedup Sites so that we are regularly able to access Backedup Data for purposes of providing the Product. Customer agrees and acknowledges that Backedup Data may not be available or restorable a) if Customer changes such access authority or otherwise restricts our access to such Backedup Site; b) due to unavailability of the Backedup Site; c) with respect to modifications to the Backedup Data that are not captured in the backup frequency or retention schedule for the Product.
      6. Unless otherwise agreed to in writing in a separate Business Associate Agreement, You agree that Backedup Data will not contain Protected Health Information and Your use of a Product will not otherwise make us a Business Associate of Customer or any Administrator. You must request that we enter into a valid Business Associate Agreement with the appropriate party and ensure such agreement is in place prior to the transfer of any Backedup Data that requires a Business Associate Agreement. The terms “Protected Health Information” “Business Associate” and “Business Associate Agreement” will have the same meanings as set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).
    6. USE OF OTHER INFORMATION
      1. If You provide us with comments or other feedback regarding the Products or our business (collectively “Feedback”), directly or through any third party, You do so without any expectation of compensation and 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. Feedback is strictly voluntary, and we are not required to hold it in confidence.
      2. Notwithstanding anything else in these Terms of Use or otherwise, we may evaluate and process use of Products and Backedup Data in an aggregate and anonymous manner and compile related statistical and performance information (“Aggregate Data”). We may use and share such Aggregate Data to improve the Products, develop new products, analyze usage,and generally for any purpose related to our business. We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any individual Customer or natural person.
      3. Operational data concerning use of the Products (“Log Data”), that servers automatically record relating to the access and use of the Products, IP address, authentication tokens, machine identification, access logs, and settings are used by us to provide the Products and operate our business and you agree that we may use such Log Data for such purposes.
    7. FEES AND PAYMENTS FOR DIRECT CUSTOMERS
      1. This Section on Fees and Payments apply only when Customer orders a Product directly from us. Where Customer orders a Product through an authorized reseller or other third party, Customer will pay all fees for the Product to such party according to the terms and at the prices agreed to between Customer and such third party.
      2. When You order a Product, the terms of this Agreement will govern, and not any other terms such as those pre-printed on Your purchase order. You may place an Order directly on line or by confirming a phone, electronic or written quote, Order or invoice we place or enter on Your behalf.
      3. Unless quoted separately by us in writing, current prices are set forth in an Online Portal. We reserve the right to change our prices. Our standard payment terms, described in an Online Portal, apply unless we expressly authorize different terms in writing.
      4. You agree to pay all applicable charges for the Products ordered by you, including prepaid charges, monthly recurring charges, and any additional usage based charges. Fees and payments will be calculated by us based solely on records maintained by us. You must notify us of any payment dispute in writing within fifteen (15) days of receipt of a disputed invoice. Prices do not include taxes, duties, and fees (such as shipping and handling) unless otherwise quoted. You will pay and be solely liable for all taxes including sales, use, excise and any other taxes, duties or charges with respect to the Products, but excluding taxes based on our net income.
      5. All new orders for physical Products will be shipped from us freight prepaid and billed to You; title and risk of loss to such physical Products will pass to You upon shipment to the destination designated in Your order or to any customs officials or border authority.
      6. You must provide us with complete and accurate billing and contact information including Your complete legal name, street address, e-mail address and the name and telephone number of an authorized billing contact. You agree to update this information within three (3) days of any change. You must provide an approved payment method (“Payment Method”) with each Order. By providing us with a Payment Method, You authorize us to automatically charge that Payment Method, or any updated Payment Method provided by You, for all charges and fees incurred in connection with the Product You order. We reserve the right to change our approved Payment Methods at any time and will use reasonable commercial efforts to alert You to any such changes.
      7. All amounts payable by You will be made without setoff, deduction or withholding. We may charge interest at the rate of 1.5% per month (or the highest rate permitted by law) on late payments. If we are unable to collect any amount owed, we may take any other steps deemed necessary to collect such fees, and You will be responsible for all our incurred costs such as collection fees, court costs and attorneys’ fees. Furthermore, in the event of non-payment, following notice of such non-payment, we may suspend or terminate access to and use of a Product until payment is made in full.
    8. YOUR RESPONSIBILITY FOR ACCESS TO YOUR PRODUCT ACCOUNT
      1. You are responsible for the security of all Your access credentials to the Product, including any action You permit any person or entity to take related to the Product and Backedup Data using your access credentials. You are responsible for the proper configuration and maintenance of safeguards as they relate to access to and use of the Product and Backedup Data, including but not limited to individual Administrator and User permissions, local Device access, network connectivity and internet connectivity.
      2. You agree to notify us as soon as practicable of any unauthorized use of any access credentials, password or account or any other known or suspected breach of security.
    9. SUPPORT
      1. We will provide reasonable support for the Products in accordance with our current support Policies. An Administrator authorized by Customer is responsible for providing first level support for each Product. By requesting support services, Customer authorizes us to access the Product and/or the Backedup Data for the purpose of providing the requested Product support. 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.
    10. UPDATES AND TESTING
      1. You agree that we may, and You hereby authorize us, from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product. During maintenance windows the Product may not be accessible; we will make reasonable efforts to notify You of such maintenance windows.
    11. CONFIDENTIAL INFORMATION
      1. Both You and we agree to employ reasonable safeguards to (i) maintain the confidentiality of each other’s Confidential Information using the same care to prevent disclosure as each of us employs to avoid disclosure of our own information of a similar nature, but in no event less than a reasonable standard of care; (ii) limit access to Confidential Information to those persons or entities involved in providing or supporting the Products or otherwise in complying with these Terms of Use, its affiliates, its financial or legal advisors, all of whom have a legal duty to protect the Confidential Information.
      2. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, (iv) was independently developed by the receiving party; (v) is approved for release or disclosure by the disclosing party without restriction; or (vi) is Feedback, Aggregate Data, Log Data or Backedup Data.
      3. 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.
      4. Each party acknowledges that any breach of any provision of this Section on Treatment of Confidential Information by the receiving party 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.
    12. WARRANTIES AND DISCLAIMERS
      1. Each of us represents and warrants that it has validly entered into this Agreement; has the legal power to do so; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
      2. During an applicable Subscription Term, we will provide the Product using a commercially reasonable level of skill and care in material accordance with the applicable Specifications. Your exclusive remedy in the event that we do not do so is to terminate this Agreement or any Order for cause as specified in section 17b.
        EXCEPT FOR THE LIMITED WARRANTIES HEREIN, THE PRODUCTS ARE PROVIDED AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA SECURITY, OR WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
        WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CUSTOMER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.
        WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
        WE DISCLAIM ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR TRANSMISSION OF DATA BY US. YOU ACKNOWLEDGE THAT NO PASSWORD-PROTECTED SYSTEM OF DATA STORAGE CAN BE MADE ENTIRELY IMPENETRABLE AND AGREE THAT THE PRODUCTS AND BACKEDUP DATA ARE NOT GUARANTEED AGAINST ALL SECURITY THREATS OR OTHER VULNERABILITIES.
        NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
    13. LIMITATION OF LIABILITY
      1. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF 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.
      2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE CUMULATIVE LIABILITY FOR ALL CLAIMS AND DAMAGES (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.
      3. The disclaimers, exclusions and limitations of liability set forth in Sections 12 and 13 form an essential basis of this Agreement and have been relied on by both You and us, and absent such disclaimers, and limitations of liability, these Terms of Use and the fees applicable to the Products would be substantially different.
    14. INDEMNIFICATION
      1. We agree to defend You from third party claims that a Product in the form supplied to You under these Terms of Use infringes or misappropriates a third party’s patent, copyright or trademark rights and we will indemnify and hold You harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by us in settlement in connection with any such claim. Our indemnification obligations will not apply to (i) claims of infringement to the extent based on Your combination of the Product with other products, services software, data or marks if the infringement could have been avoided by the use of such Product not in such combination; (ii) any modifications to the Product not made by us; (iii) any damages incurred as a result of Your failure to use any update to the Product we provide; or (iv) use of a Product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions”). If we determine that a Product is or may become subject to an infringement claim, we may, at our option: (1) procure for You the right to continue to use the Product; or (2) replace or modify the Product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate Your use of the Product and will issue a refund of the fees paid (not including usage fees for services already provided) to acquire the initial use of the allegedly infringing Product less applicable reasonable depreciation. This Section represents Your sole and exclusive remedy and our sole and exclusive liability for any infringement claims based on the Products.
      2. You agree to defend us, our suppliers and affiliates, and the officers, directors, employees and representatives of each of them (each an “Indemnified Party”), from all damages and costs incurred as a result of a third party claim and You will indemnify and hold any and all “Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by You in settlement in connection with any such claim, to the extent the claim arises out of (a) Your breach of these Terms of Use, including Your failure to comply with Applicable Law; or (b) if You are a third party Administrator, Your failure to cause each Customer to agree to the applicable Product Terms of Use and/or Customer Terms or Your actions in excess of the authority granted to You by any Customer.
      3. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the party seeking indemnification will notify the indemnifying party in writing promptly upon learning of any claim for which indemnification is sought; (b) the indemnifying party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
    15. EXPORT CONTROL AND GOVERNMENT USES
      1. You represent and warrant that Your use of the Products and the Backedup Data will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority. You will not export or re-export or allow the export or re-export of the Products (or Backedup Data through use of the Products) in violation of any such export laws, restrictions, controls or regulations.
      2. If Products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon us unless specifically agreed to by us in writing. If Customer 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), and the rights granted in the Product to such Content Owners are the same as the rights granted to all others under these Terms of Use.
    16. ARBITRATION; CLASS ACTION WAIVER
      1. All claims and disputes arising out of this Agreement or the use of any Product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association (“AAA”). Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed under AAA rules for the pertinent claim. Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) will be made a part of the arbitrator’s award. The arbitration will take place in Fairfield County, Connecticut. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
      2. Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration: (i) alleged infringement or misappropriation of Intellectual Property Rights; (ii) any claims involving a party’s right to indemnification under this Agreement; or any claim for temporary or permanent injunctive relief.
      3. 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 18.
      4. 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.
    17. TERM AND TERMINATION
      1. Term. A Subscription Term will commence on the date specified in the Order and will continue for the initial term specified in the Order. If no Subscription Term is specified, the standard Subscription Term described in our current Policies will apply. Unless otherwise specified, each Subscription Term will automatically renew for a Subscription Term of equal length unless either party provides written notice of its desire to terminate as specified in our current Policies. These Terms of Use will continue until all Subscription Terms have expired or been terminated.
      2. Termination for Breach. Either party may terminate this Agreement or an individual Order for cause upon 30 days’ notice of a material breach of any of its duties, obligations or responsibilities under this Agreement, provided that the breaching party has failed to cure such breach (or provide an acceptable plan for curing such breach) within the thirty (30) day notice period.
      3. Access to Backedup Sites. If a Backedup Site amends its API guidelines in such a way that materially affects our ability to access the Backedup Site to provide the Product in accordance with the Specifications, and if we are unable to perform substantially the same functionality, either party may terminate the applicable Order by providing to the other thirty (30) days’ written notice. We will refund any unused prepaid fees for the remainder of the applicable Subscription Term as your sole and exclusive remedy.
      4. Effect of Termination. Upon any termination of a Subscription Term, Customer will immediately discontinue all use of the Product. For up to sixty (60) days after the effective date of termination, we will, upon written request allow Customer to export or download a copy of its Backedup Data as provided in the Specifications. After such period, we have no obligation to maintain or provide any Backedup Data and may thereafter delete or destroy all copies of the Backedup Data, unless legally prohibited.
      5. We reserve the right at any time to modify these Terms of Use and updated Terms of Use will be posted within the applicable Online Portal. We will make reasonable efforts to notify You of material changes and Your continued use of any Product after an update will indicate Your acceptance of any updated Terms of Use. If You do not agree to any updated Terms of Use, You must terminate Your use of the Product immediately. If You provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the Product. We may also modify and update Policies, Specifications, and other support materials. All such changes are effective immediately upon posting to the Online Portal and You should review such materials on a regular basis so that You will be apprised of any changes.
    18. MISCELLANEOUS
      1. Construction. The section headings in these Terms of Use are for convenience only and will not be deemed to be substantive; any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these Terms of Use.
      2. Governing Law. This Agreement, if with Datto, Inc., will be governed, by Connecticut law, without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement, if not with Datto, Inc., will be governed in accordance with the laws of the jurisdiction where the applicable Datto subsidiary is located and nothing in this Agreement will be deemed to exclude or limit the liability of either party which cannot be limited or excluded by such applicable law. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
      3. Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
      4. 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.
      5. Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.
      6. Assignment. You may not assign this Agreement (including with respect to any individual Product or Backedup Data), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
      7. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these Terms of Use or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of god, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.
      8. 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.
      9. Survival. The applicable sections titled Fees and Payment, Use of Other Information, Confidential Information, Warranties and Disclaimer, Limitations of Liability, Indemnification, Term and Termination, Arbitration and Class Action Waiver, Miscellaneous and Definitions will survive the termination or expiration of this Agreement.
      10. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
      11. English Language. These Terms of Use have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
      12. 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 Your Order or in an Online Portal. Notices to us must be sent to 101 Merritt 7, Norwalk, CT 0685 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.
      13. Entire Agreement. These Term of Use, applicable Order and applicable Policies constitute the entire understanding of the parties with respect to the subject matter hereof and supersede 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.
      14. Publicity. You agree that we may publicly refer to Customer on our website and sales presentations, as a customer of ours and may use Customer’s logo for such purposes.
    19. DEFINITIONS
      1. “Administrator” means one or more persons or entities authorized by Customer to manage or use the Product on Customer’s behalf, including access to and control of Backedup Data. A Product may have multiple Administrators and we expressly may rely on the authorization and instructions of any Product Administrator, until we receive written instructions to the contrary.
      2. “Agreement” means an Order for a Product together with and subject to these Terms of Use.
      3. “Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.
      4. “Backedup Data” means the data and content that Customer designates for copying, backup and use with a Product.
      5. “Backedup Site” means a third party application or service with which the Product interacts, upon Customer’s authorization, to obtain copies of the Backedup Data.
      6. “Confidential Information” means all operational written or oral information, disclosed by either party to the other that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, but not including Feedback, Aggregate Data, Log Data or Backedup Data.
      7. “Customer” is the entity that owns the Backedup Site account. References to “Customer” shall in the applicable context also refer to any Administrator acting on Customer’s behalf.
      8. “Device” means any hardware-based component of a Product offering.
      9. “Enhancement” means any upgrade, update or modification to a Product. All Enhancements will be subject to these Terms of Use.
      10. “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.
      11. “Online Portal” means a web-based application or interface that contains information related to the Product, including the ability to order, pay for, manage, monitor, support and/or use the Product.
      12. “Order” means an order for a Product that specifies such things as the Backedup Site, data storage allotment and/or number of Users. An Order may be created at the time of Product setup, by separate written or electronic document or by an Administrator or reseller on behalf of Customer.
      13. “Product” means any SaaS Protection product provided through the use of Software, web-based Services, or Devices, including all Enhancements to Products, all subject to these Terms of Use.
      14. “Policies” means the terms and conditions applicable to order, configure, access, use, and support of the Products. Policies are published on an Online Portal.
      15. “Specifications” means any Policies, documentation, user manuals or other materials relating to the Products. Specifications as may be published on an Online Portal.
      16. “Subscription Term” means the initial and any renewal term during which Customer agrees to subscribe to a Product, as specified in an Order and these Terms of Use and Policies.
      17. “Terms of Use” means these terms and conditions, as amended from time to time, that together with an Order form a binding agreement between the Parties regarding use of the Product.
      18. “User” means an individual affiliated with Customer who Customer authorizes to use or have use of the Product. For purposes of this Agreement, the Customer will be the owner of the Backedup Data and Customer is responsible for the acts and omissions of its Users.
      19. “You” means, in the applicable context, the person or entity agreeing to these Terms of Use, either a Customer or an authorized Administrator acting on behalf of a Customer.
DATTO NETWORKING PRODUCT TERMS OF USE

Last updated May 2018

These Product Terms of Use (“Terms of Use”) form a binding, legal contract between Datto, Inc. or one of our subsidiaries or affiliates depending on where you are located (“Datto” or “us”) and you regarding your access to and use of Datto networking products (referred to in these Terms of Use as the “Product” or “Products”).

PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING “I ACCEPT” BELOW OR BY ACCESSING OR USING ANY PRODUCT YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE, INCLUDING ALL APPLICABLE POLICIES. IF YOU ACCEPT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS OF USE AND “YOU” WILL REFER TO THAT LEGAL ENTITY.

Certain Products are available for resale and use only within designated geographic regions. You may purchase and resell such Products for use only in the geographic region designated by Datto for such Product. The European Data Processing Addendum is incorporated into these Terms of Use If a Networking Device is in use in the European Economic Area.

If you accept these Terms of Use solely as a third party Administrator of a Product (not as a Network Owner), you represent and warrant that you have the full authority needed to agree to these Terms of Use with respect to access, use and support of the Product for the Network Owner.

If you do not agree to these Terms of Use, you may not install, access or use the Product.

Capitalized words are defined in the last section or when first used throughout these Terms of Use.

    1. USE OF PRODUCT
      1. Right to Use. A Product consists of a Networking Device deployed on a Network and Network Services that are made available through the Networking Device and/or a Network Management Portal. Datto Networking Devices may be registered only in the Datto Network Management Portal. Subject to these Terms of Use and the receipt by us of all fees applicable to the Product, Datto grants you a limited, revocable, non-sublicensable, non-exclusive right and license to access and use the Product on one Network in accordance with the Product Specifications. If you are a Network Owner, you may use the Product solely for your own internal Network and not for the benefit of any third party.
      2. 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.
      3. Limited Rights. Except for the limited rights granted in these Terms of Use, we and our licensors retain all right, title, interest and Intellectual Property Rights in the Datto Software, Network Services and the Network Management Portal, and all copies thereof. The Product contains material that is protected by copyright, patent and trade secret law of jurisdictions throughout the world, and by international treaty provisions. All Intellectual Property Rights and other rights in and to Product not expressly granted under these Terms of Use are expressly reserved by us and/or our licensors or suppliers.
      4. 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.
      5. 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.
      6. Beta Products. We may designate enhancements to a Product or a new Product as “Beta Product.” Such Beta Product will not be ready for use in a production environment and its operation may be unpredictable and lead to erroneous results. You are under no obligation to use a Beta Product. If you choose to use a Beta Product, you agree the Beta Product (i) is experimental and has not been fully tested; (ii) may not meet your requirements; (iii) use or operation may not be uninterrupted or error free and is for purposes of evaluating and testing the product and providing feedback to us. You agree to report promptly to us any errors or other deficiencies in the Beta Product and will hold all information relating to use and performance of the Beta Product in strict confidence and not disclose such information to any unauthorized third parties. Use of any Beta Product is otherwise subject to these Terms of Use. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF USE, ALL BETA PRODUCT IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against us and our suppliers and licensors arising out of your use of any Beta Product.
      7. Evaluation Use. If the Product is being used during a trial or evaluation, all of these Terms of Use (except for the payment obligation) will apply for the purpose and term of such authorized evaluation or trial period only, and not for the term of a valid Service Subscription for the Product. We reserve the right to terminate any such evaluation use of the Product at any time in our sole discretion.
    2. LIMITATIONS ON RIGHTS OF USE
      1. General Restrictions. You may not nor may you permit, facilitate or authorize any third party to: (i) use the Product other than as permitted under these Terms of Use and the Product Specifications; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in the Product or its Specifications; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from the Product, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of the Product; (vi) alter any disabling mechanism which may reside in the Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Product, or directly or indirectly permit any unauthorized third party to use or copy the Product; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Product; (ix) extract portions of the Datto Software for use in other applications; (x) register or remotely manage any Product through any network management portal other than a Datto Network Management Portal; or (x) access any Product to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product.
      2. 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.
      3. 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.
      4. 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.
      5. 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.
      6. 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.
    3. REMOTE MONITORING AND MANAGEMENT
      1. Your use of the Product includes access to and use of the Network Management Portal hosted by us through which a Product is managed.
      2. 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.
      3. 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.
      4. 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.
    4. THIRD PARTY ADMINISTRATOR RIGHTS AND RESPONSIBILITIES
      1. 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.
      2. 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.
    5. MAINTENANCE, SUPPORT AND TRAINING
      1. 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.
      2. 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.
      3. 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.
      4. 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.
    6. TERM AND TERMINATION
      1. Term. These Terms of Use will apply to you and your right to use a Product will commence at the earlier of when (1) you register and/or deploy the Product; and/or (2) you are authorized to be an Administrator of a Product, and continue in effect with respect to the Product until terminated as set forth in this Section 6. The right of any third party Administrator to use a Product continues only as long as such Administrator continues to be authorized to act on behalf of the Network Owner.
      2. Termination. Without prejudice to any other of our rights, we may terminate your right to use a Product, including access to any Network Services, in our sole discretion, on 10 calendar days’ notice if (i) there is any failure to comply with these Terms of Use; (ii) there is a failure to pay any fees due to us for use of the Product and there is a failure to cure such breach within the notice period. We may also terminate certain and/or all Network Services in the event (i) of the refusal or inability of our suppliers to provide certain functionality; or (iii) any rules, regulations or policies of the Federal Communications Commission or any other governmental agency or governing body may cause any Product, including any Network Services, to be unlawful, unauthorized, or impractical in our sole determination. We may terminate immediately in the event: (a) there is any breach of Section 1 (Use of Product), Section 2 (Limitations on Rights of Use), or Section 10 (Confidentiality); or (b) we reasonably believe there may exist a basis for a claim of Intellectual Property Rights infringement by any third party relating to the Product.
      3. 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.
      4. 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).
    7. UPDATES AND TESTING
      1. 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.
      2. 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.
      3. Changes to Terms of Use/ Policies/Specifications. We reserve the right at any time to modify these Terms of Use and updated Terms of Use will be posted within the applicable Product or Online Portal. We will make reasonable efforts to notify you of material changes and your continued use of any Product after an update will indicate your acceptance of any updated Terms of Use. If you do not agree to any updated Terms of Use, you must terminate your use of the Product immediately. If you provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the Product. We may also modify and update Policies, Third Party Networking Terms, Specifications, and other support materials. All such changes are effective immediately upon posting to the Online Portal and you should review such materials on a regular basis so that you will be apprised of any changes.
    8. USE OF INFORMATION
      1. 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.
      2. Use of Aggregate Data. Notwithstanding anything else in these Terms of Use or otherwise, we may evaluate and process use of the Products in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). We may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to our business. We retain all Intellectual Property Rights in Aggregate Data.
      3. 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.
      4. 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.
    9. CONFIDENTIALITY
      1. Protection of Confidential Information. Both you and we agree to (i) maintain the confidentiality of the Confidential Information of the other party; (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except to the as necessary for the purpose of using or providing the Product or otherwise in complying with these Terms of Use; (iii) use the same care to prevent disclosure of the Confidential Information of the other party to third parties as it employs to avoid disclosure of its own information of a similar nature, but in no event less than a reasonable standard of care; (iv) use the Confidential Information of the other party solely for the purpose of using or providing the Product or otherwise in complying with these Terms of Use. Feedback, Aggregate Data and Log Data are not the Confidential Information of any Network Owner or Administrator.
      2. 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.
      3. 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.
      4. 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.
      5. 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.
      6. Return of Confidential Information. Unless it is expressly authorized to retain the other party’s Confidential Information, a party will promptly return or use commercially reasonable efforts to destroy, at the other party’s option, the other party’s Confidential Information upon request or upon any termination of these Terms of Use.
    10. WARRANTY AND DISCLAIMER
      1. 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.
    11. LIMITATION OF LIABILITY
      1. 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.
      2. 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.
      3. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS OF USE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
      4. Essential Basis. The disclaimers, exclusions and limitations of liability set forth in Sections 10 and 11 form an essential basis of these Terms of Use and have been relied on by both you and us, and absent such disclaimers, exclusions and limitations of liability, these Terms of Use and the fees applicable to the Products would be substantially different.
    12. INDEMNIFICATION
      1. Indemnification by Datto. We agree to defend you from and against third party claims that a Product in the form supplied to you under these Terms of Use infringes or misappropriates a third party’s patent, copyright or trademark rights and we will indemnify and hold you harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Datto in settlement in connection with any such claim. Our indemnification obligations will not apply to (i) claims of infringement to the extent based on your combination of the Product with other products, services or software or marks if the infringement could have been avoided by the use of such Product not in such combination; (ii) any modifications to the Product not made or authorized by us; (iii) any damages incurred as a result of your failure to use any update to the Product we provide; or (iv) use of a Product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions”). If we determine that a Product is or may become subject to an infringement claim, we may, at our option: (1) procure for you the right to continue to use the Product; or (2) replace or modify the Product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate your use of the Product and will issue a refund of the fees paid (not including usage fees for Network Services already provided) to acquire the initial use of the allegedly infringing Product less reasonable depreciation. This Section 12.1 represents your sole and exclusive remedy and Datto’s sole and exclusive liability for any infringement claims based on the Product.
      2. Your Indemnification of Datto. You agree to defend us, our licensors and affiliates, and the officers, directors, employees and representatives of each of them (each a “Datto Indemnified Party”), from and against all damages and costs incurred as a result of a third party claim and you will indemnify and hold any and all Datto Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by you in settlement in connection with any such claim, to the extent the claim arises out of (i) your breach of these Terms of Use; (ii) your negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against us, including any claim by a third party service provider; (iii) any of the IP Exclusions referenced in section 12.1; or (iv) if you are a third party Administrator, your failure to cause each Network to Owner to agree to these Product Terms of Use and/or Network Owner Terms, as applicable, or your actions in excess of the authority granted to you by any Network Owner.
      3. 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.
    13. EXPORT CONTROL AND GOVERNMENT USES
      1. 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.
      2. 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).
    14. ARBITRATION; CLASS ACTION WAIVER
      1. Arbitration / No Class Action. All claims and disputes arising out of these Terms of Use or the use of any Product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association (“AAA”). Arbitration must be on an individual basis and neither of us may join or consolidate claims in arbitration or arbitrate claims as a representative or member of a class. Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed under AAA rules for the pertinent claim. Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) will be made a part of the arbitrator’s award. The arbitration will take place in Fairfield County, Connecticut. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
      2. Claims Not Subject to Arbitration. Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration: (i) alleged infringement or misappropriation of the other party’s Intellectual Property Rights; (ii) any claims involving a party’s right to indemnification under this Agreement; (ii) your breach of these Product Terms of Use; (iii) any claim for temporary or permanent injunctive relief.
      3. 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.
      4. 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.
    15. ADDITIONAL PROVISIONS
      1. Construction. The section headings in these Terms of Use are for convenience only, will not be deemed to be substantive and will not be referred to in connection with the construction or interpretation of these Terms of Use. Any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these Terms of Use.
      2. Governing Law; Jurisdiction; Venue. These Terms of Use will be governed, construed and enforced in accordance with the laws of the State of Connecticut without reference to conflicts of law principles and the parties agree that exclusive jurisdiction for any permitted actions connected herewith will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement, if not with Datto, Inc., will be governed in accordance with the laws of the jurisdiction where the applicable Datto affiliate or subsidiary is located and nothing in this Agreement will be deemed to exclude or limit the liability of either party which cannot be limited or excluded by such applicable law. These Terms of Use will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
      3. 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.
      4. 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.
      5. Assignment. You may not assign these Terms of Use or any rights or obligations hereunder (including with respect to any individual Product), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign our obligations and rights hereunder to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, these Terms of Use will be binding upon the parties their permitted successors and assigns
      6. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these Terms of Use or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of god, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.
      7. 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.
      8. No Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Use.
      9. English Language. These Terms of Use have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
      10. 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.
      11. 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.
    16. DEFINITIONS
      1. “Administrator” means (i) a Network Owner that controls, manages, uses and/or supports a Product for its own internal use; or (ii) a third party person or entity, other than Datto, authorized by a Network Owner to control, manage and/or use a Product for that Network Owner. A Product may have multiple Administrators and Datto expressly may rely on the authorization and instructions of any Product Administrator that agrees to these Terms of Use, until Datto receives written instructions to the contrary.
      2. “Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.
      3. “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.
      4. “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.
      5. “Enhancement” means any upgrade, update or modification to a Product. All Enhancements will be subject to these Terms of Use.
      6. “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.
      7. “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.
      8. “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.
      9. “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.
      10. “Networking Device” means any Datto networking hardware device.
      11. “Network Owner” means the person or entity that owns, licenses, or lawfully controls the Network on which a Networking Device is deployed.
      12. “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.
      13. “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.
      14. “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.
      15. “Product” means any Datto networking product consisting of a Networking Device and Network Services.
      16. “Policies” means the terms and conditions of any policies applicable to access, use, and support of the Products.
      17. “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.
      18. “Specifications” means the Policies, documentation, user manuals and any technical publications and materials, as applicable, relating to the Products.

Third Party Networking Terms

Any i) fraudulent use; or ii) use of the wireless service and/or mobile telephone number embedded in the Product other than as part of the Product in compliance with the Product Terms of Use, is strictly prohibited. Wireless services may not be resold.

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.

DATTO NETWORKING – NETWORK OWNER TERMS

The following terms apply to you as the owner of the computer network (“Network”) on which one or more Datto networking products (“Product(s)”) will be used. The Products are provided by Datto, Inc. or one of its subsidiaries or affiliates (“Datto”) to the reseller/managed service provider (“Administrator”) that will manage the Products for you. These Terms apply to you only if the Products are managed by an Administrator other than you. If you access, use or manage any Product yourself, including for support, you must register with Datto as an Administrator of the Product and accept and agree to the Product Terms of Use.

  1. RIGHTS TO THE PRODUCT. You acknowledge that Datto is the owner of all intellectual property rights in and to the Products. You will not engage in or authorize any activity that is inconsistent with Datto’s ownership.
  2. USE REQUIREMENTS
    1. Certain Products may only be used in the U.S.
    2. The Products may only be used on a Network having primary internet service through an Internet Service Provider other than through the Product.
  3. YOUR ADMINISTRATOR. Datto will interact with the Administrator(s) you authorize to operate and manage the Product on your Network. You have no contractual relationship with Datto and you are not a third party beneficiary of any agreement between Datto and an Administrator. An Administrator is not an agent of Datto and is not authorized to make any representations or warranties on behalf of Datto regarding the Product or its use.
    1. You expressly agree that Datto may rely on the instructions and authorization of your Administrator with respect to use and support of the Product on your Network.
  4. UNAUTHORIZED USE. If Datto reasonably believes the use of any Product on your Network (i) results in any violation of the Product’s Terms of Use; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Product; or (iii) may otherwise subject Datto to liability, Datto reserves the right to refuse or disable access to the Product. Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Datto may restrict access to any Product without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event Datto takes any such action without prior notice, Datto will provide notice to the Administrator within a reasonable time, unless prohibited by law.
  5. USE OF AGGREGATE DATA. Datto may evaluate and process use of any Product in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Datto may use and share such Aggregate Data to improve the Product, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business. Datto retains all intellectual property rights in Aggregate Data. Aggregate Data does not include any personally identifiable information.
  6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY. You acknowledge that the Products are made available to the Administrator on “AS IS” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER 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. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, 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. DATTO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL DATTO OR ANY DATTO LICENSOR OR SUPPLIER BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR ANY DIRECT OR 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, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
  7. FAILOVER MODE CAPABILITY.
    1. If the Product in use on your Network includes Failover Mode Capability, the following terms and limitations (including those set forth below required by the wireless service provider) will apply to such use.
    2. Failover Mode may be used only during a period of documented primary internet outage affecting the Network on which the Product is authorized for use. Failover Mode may not be used in 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 external antennae, signal boosters or any other non-authorized equipment.
  8. Wireless Service Provider Terms
    1. Any fraudulent use or any use of the wireless service and/or mobile telephone number imbedded in the Product other than as part of the Product in compliance with the Product Terms of Use is strictly prohibited.
    2. The Product may not be deployed in any area that requires continuous roaming access.
  9. Any use of the Product for Remote Medical Monitoring is prohibited. 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 NETWORKING POLICIES

WARRANTY

Standard Limited Hardware Warranty for New Datto Networking Hardware

New Datto Networking hardware Devices and equipment are warranted against defects in materials and workmanship under normal use, handling and installation for the warranty period in the chart below from the date the Networking hardware is linked to your account (which approximates the shipping date), regardless of the date of actual registration/activation. With respect to any new Datto Networking hardware covered by this warranty (“Standard Limited Hardware Warranty”) that is found by Datto to be defective during the warranty period, Datto’s obligations under this Standard Limited Hardware Warranty, at Datto’s option, are limited to either: (i) repairing the Networking hardware using new or refurbished parts that are equivalent to new in performance and reliability; (ii) replacing the Networking hardware with one that is new or formed from new and/or refurbished parts that are equivalent to new in performance and reliability; or (iii) issuing a credit for the Networking hardware. In order to be eligible for warranty service, a Networking Device must be enrolled in a current paid Datto Networking Service Subscription. This Standard Limited Hardware Warranty does not extend to software included with Networking hardware nor to any other hardware or software on the network on which the Datto Networking hardware is in use. All warranty claims must be received by Datto within the applicable warranty period.

Exclusions from Warranty – This Standard Limited Hardware Warranty does not cover Networking hardware that has defects or failures resulting from 1) accident, neglect or abuse; 2) improper installation or maintenance; or 3) modifications, repairs, improvements, or other changes to any software or hardware component that have not been authorized in writing by Datto. You are responsible for any costs incurred by Datto related to the foregoing exclusions.

A Device that has been repaired or is a replacement of a Device will continue to be under warranty for a period equal to the greater of (i) the balance of the existing warranty period for the original Device; or (ii) sixty (60) days.

Networking Hardware TypeStandard Warranty Period
Wireless Access PointsLifetime*
SwitchesLifetime*
Managed Power DevicesLifetime*
Datto Networking Appliances3 Years
D200 Edge RouterLifetime*
Datto Networking Hardware Accessories (PoE Injectors, SFP Fiber Transceivers, etc.)35 Days

*Lifetime is measured by the commercially useful life of the Networking hardware (not to exceed 10 years from the date Datto no longer sells the product). For any warranty claim made more than 18 months from the date the Networking hardware is linked to your account, the Networking device must have been enrolled in a paid Networking Service Subscription for a minimum of 6 months immediately prior to the warranty claim. Warranty replacements, if offered, may be newer model devices with the same capabilities.

THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY DATTO AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

All warranty returns must be authorized by us with a valid RMA number issued by our Technical Support team (1-877-455-6015). If a warranty return is authorized, please follow the Product Return Guidelines.

RETURNS

All Datto Networking products may be returned at any time within 45 days of purchase.  Please contact your Datto Sales Representative to request an RMA email that will include return instructions and, as applicable, a return shipping label.

For Networking hardware returns, please follow the Product Return Guidelines. To be eligible for a full refund, the Networking hardware must be returned in its original packaging in undamaged, working condition and must include all accessories originally shipped with the hardware. If hardware is returned missing parts, in damaged condition or if damage occurs while in shipment due to poor packaging, your refund may be reduced to cover the damaged or lost hardware.

For all other returns, please follow any return instructions included with your RMA materials.

SERVICE

Service Subscriptions

All Datto Networking Devices may be registered only in the appropriate Datto Network Management portal. To maintain managed networking services, each Networking Device must be registered in a Datto Network Management Portal and enrolled individually in a current paid Datto Networking Service Subscription. All Service Subscriptions include licenses to the technology needed to perform and manage networking functions as well as access to Datto Technical Support.

A Datto Networking Service Subscription begins when you register the Networking Device in the appropriate Datto Network Management Portal.  Networking Device specific Service Subscription features and options are indicated on the applicable Networking Device pricing sheet or are described below.

Each Service Subscription consists of a Service Plan and Payment Term.

Service Plans:

Service Plans for Datto Networking Appliance:

The initial Service Subscription term for a Datto Networking Appliance is either for one month (the minimum duration for a Service Subscription) or for a defined number of consecutive months, called a “Committed Service Term”.  Certain Datto Networking Appliance hardware discounts are available only when purchased with a Committed Service Term.

The first Service Subscription payment is due at the time you purchase a Datto Networking Appliance. Once you register the Datto Networking Appliance we will send your next invoice adjusted for the prepayment made. A Datto Networking Appliance must be registered within six months (45 days if purchased with a Committed Service Term) from the date the Datto Networking Appliance is linked to your account and if you fail to do so any pre-paid Service Subscription payment will not be refunded to you.

If one month is identified on an Order, or if you do not otherwise agree to a Committed Service Term, the duration of a Service Subscription is one month, which will automatically renew on a month-to-month basis unless terminated by you (by providing written notice to us by the 15th calendar day of the month prior to the effective month of cancellation).

If a Service Subscription is for a Committed Service Term, you agree to pay for Service Subscription fees for the entire Committed Service Term.  A Committed Service Term is non-revocable and non-transferable from the Datto Networking Appliance Device to which it applies.  If you terminate Service at any time during a Committed Service Term, you will not receive a refund of any prepaid but unused Service Subscription fees and a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee times the number of months remaining in the Committed Service Term) will be due immediately and charged to your preferred payment method.   A Committed Service Term (and payment obligation) begins no later than 45 days from the date of Device purchase, regardless if you have registered the applicable Device in our system.

Unless you notify us in writing by the 15th calendar day of the month prior to the expiration of a Committed Service Term that you do not want to continue a Service Subscription for a Datto Networking Appliance Device, the Service Subscription will convert to a one-month term and automatically renew on a month- to month basis at our then current fees until cancelled by you as set forth above.

Service Plan for Wireless Access Points and Switches:

The Service Subscription term for each Wireless Access Point and Switch is one month, which will automatically renew on a month-to-month basis unless terminated by you (by providing written notice to us by the 15th calendar day of the month prior to the effective month of cancellation).

Although the Service Subscription begins upon Device registration, you will not be billed for Service until the month following registration. The monthly Service Subscription fee is charged for each Wireless Access Point and Switch and is based on the total number of registered Wireless Access Points and Switches in your overall Datto Partner Portal account as of billing date. The monthly Service fee is the product of the total number of registered Wireless Access Points and Switches multiplied by the associated per Device fee in the appropriate price tier.

Service Plan for Managed Power Devices:

The Service Subscription term for each Managed Power Device is one month, which will automatically renew on a month-to-month basis unless terminated by you (by providing written notice to us by the 15th calendar day of the month prior to the effective month of cancellation).

Although the Service Subscription begins upon Device registration, you will not be billed for Service until the month following registration. The monthly Service Subscription fee is charged for each Managed Power Device in your overall Datto Partner Portal account as of the billing date.

PRODUCT RETURN GUIDELINES

Step 1 – Notification:

Warranty Return: Once our Technical Support team has authorized the warranty return, a replacement networking device or part will be sent to you. You will be provided with the return shipping instructions and label with the replacement networking device or part. If you cannot locate this return label, please contact us at returns@datto.com and we will have a new shipping label sent to you.

Credit Return or Trial Return: We will provide you with return shipping instructions and label once a return request is processed through your Sales Representative. If you cannot locate this return label, please contact us at returns@datto.com and we will email you the information.

Note: When we email you a shipping label, it will come from an automated sender with the shipper’s domain (e.g., ups.com or fedex.com). If you do not receive your label, please check your spam folder. If not found, please contact us at returns@datto.com.

STEP 2 – PACK AND SHIP:

After receiving the shipping label, package your original networking device or part in the original or like packaging, ensure that it is protected, and return to Datto within 45 days of receipt of the shipping label or you will be charged for the applicable device or part. If Datto determines after receipt of the original device or part subject to a warranty return that there is no defect found or that the defect is due to one of the exclusions listed under our warranty, you will be charged for the part or the difference between the cost of the replacement device and the value of the original returned device. All Datto networking devices must be returned in adequate packaging, and if damage occurs while in shipment due to poor packaging, fees may be charged to you to cover damaged hardware.

Updated 16 May 2018

BCDR PRODUCT TERMS OF USE

Last modified May 2018

These BCDR Product Terms of Use (“Terms of Use”) form a binding, legal contract between Datto, Inc. or one of our subsidiaries or affiliates depending on where you are located (“Datto” or “us”) and you regarding your access to and use of Datto image-based business continuity and disaster recovery products (referred to in these Terms of Use as the “Product” or “Products”).

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY CLICKING “I AGREE” BELOW OR BY INSTALLING, ACCESSING OR USING ANY PRODUCT YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE, INCLUDING ALL APPLICABLE POLICIES AND THIRD PARTY TERMS INCORPORATED THROUGHOUT.   IF YOU ACCEPT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS OF USE AND “YOU” WILL REFER TO THAT LEGAL ENTITY.

If you accept these Terms of Use solely as a third party Product Administrator (not as a Content Owner), you represent and warrant that you have the full authority needed to agree to these Terms of Use with respect to access, use and support of the Product and Content for the Content Owner.

If you do not agree to these Terms of Use, you may not register, access or use the Datto Product.

Capitalized words are defined in the last section or when first used throughout these Terms of Use.

  1. USE OF PRODUCTS
    1. Right to Use.  Subject to these Terms of Use and the receipt by us of all fees applicable to the Product, Datto grants you a limited, revocable, non-sublicensable, non-exclusive right and license to access and use the Product in accordance with the Product Specifications.  If you are a Content Owner, you may use the Product solely for your internal business purposes.  If your use of the Product involves the use of backup agent software, you hereby agree to the terms of all applicable Agent Software Licenses.
    2. Ongoing Payment Requirement.  The continued right to use a Product requires that it be enrolled in a Service Subscription and we continue to receive payment with respect to such use.  If a Product is not properly registered in a current paid Service Subscription we have no obligation to allow access to or use of the Product, nor to provide any related Services.
    3. Limited Rights.  Datto Software is licensed, not sold. Except for the limited rights granted in these Terms of Use, we and our licensors retain all right, title, interest and Intellectual Property Rights in Datto Software and Services, and all copies thereof.   The Products contain material that is protected by copyright, patent and trade secret law of jurisdictions throughout the world, and by international treaty provisions.   All Intellectual Property Rights and other rights in and to Products not expressly granted under these Terms of Use are expressly reserved by us and our licensors.
    4. Third Party Technology.  Certain Products may involve or allow the use of third party technology, the use of which is subject to such third parties’ license terms.  These terms are located under the heading “Third Party License Terms” on the Online Portal.  You agree that your use of a Product is deemed your express consent to all such applicable Third Party License Terms.  As to all such third party technology: (i) it is provided by us on an “AS IS” basis, without warranty of any kind and (ii) we will not be liable for damages of any kind, including direct, indirect, incidental, special, exemplary, punitive, or consequential damages, nor will we indemnify you for any claims related to any third party technology.   Except as may be provided in the Third Party Terms, or in any separate agreement between you and the provider of the applicable third party technology, your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the third party technology is to cease its use.
    5. Beta Products.   We may designate enhancements to a Product or a new Product as “Beta Product.” Such Beta Product will not be ready for use in a production environment and its operation may be unpredictable and lead to erroneous results.  You are under no obligation to use a Beta Product.  If you choose to use a Beta Product, you agree the Beta Product (i) is experimental and has not been fully tested; (ii) may not meet your requirements; (iii) use or operation may not be uninterrupted or error free and is for  purposes of evaluating and testing the product and providing feedback to us.  You agree to report promptly to us any errors or other deficiencies in the Beta Product and will hold all information relating to use and performance of the Beta Product in strict confidence and not disclose such information to any unauthorized third parties. Use of any Beta Product is otherwise subject to these Terms of Use.  NOTWITHSTANDING ANY OTHER
    6. PROVISION OF THESE TERMS OF USE, ALL BETA PRODUCT IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against us and our suppliers and licensors arising out of your use of any Beta Product.
    7. Evaluation Use. If the Product is being used during a trial or evaluation, all of these Terms of Use (except for the payment obligation) will apply for the purpose and term of such authorized evaluation or trial period only, and not for the term of a valid Service Subscription for the Product.   We reserve the right to terminate any such evaluation use of the Product at any time in our sole discretion.
    8. Additional Data Processing Terms. Certain Products may be configured to designate the geographic region where Content associated with a Product is stored. The European Data Processing Addendum is incorporated into these Terms of Use if a Product is configured to store Content in the European Economic Area.
  2. LIMITATIONS ON RIGHTS OF USE
    1. General Restrictions.   You may not nor may you permit, facilitate or authorize any third party to:  (i) use any Product other than as permitted under these Terms of Use; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Product or its Specifications; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Product; (vi) alter any disabling mechanism which may reside in a Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Product; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Products; (ix) extract portions of the Datto Software or Device files for use in other applications; or (x) access any Product to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product.
    2. Limitation on Product Use/Content.  Use of the Products and Content must at all times be in compliance with all Applicable Laws.  The Products and Content may not (i) be used to send any unsolicited commercial email or invitation; (ii) be used to request, collect, store, transmit or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any applicable privacy law or regulation; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise in violation of Applicable Law; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Law; (vi) contain or be used to  transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Products; (vii) violate the terms of any license agreement or other agreement or terms of use to which the Content Owner, Product Administrator or Content is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence (“Minors”), or to harm Minors in any way, or that would subject us to any Applicable Law governing children’s privacy or otherwise related to protecting Minors.
    3. Datto’s Rights.  In the event we reasonably believe any Product use or Content: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Products; or (iii) may otherwise subject us to liability, we reserve the right to refuse or disable access to the Product or Content.  We may also take such action pursuant to the Digital Millennium Copyright Act and/or 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 or Content without prior notice including as necessary to comply with Applicable Law or protect against threats to our network or any Product. If we take any such action without prior notice, we will provide notice to an Administrator, unless prohibited by Applicable Law.
    4. Certain Uses Not Supported.  Use of the Products is not authorized, will not be supported by us, and any warranties will be void, if the Products are modified in any way or used in a manner for which they are not intended, including but not limited to (i) using software or hardware that is not intended, recommended or approved by us for the Product;  (ii) installing a different operating system (OS) on a hardware Device; (iii) except for a limited testing period or in the event of a documented business continuity event, using a Product in a virtualized production environment instead of as a backup application; or (iv) use, access and support of any Product by other than authorized personnel who are knowledgeable about the Product, Service and Content involved and are able to demonstrate the required level technical competency with respect to the use of the Product.
    5. Your Obligations.  You agree to immediately notify us of any unauthorized use, copying, or disclosure of the Product or Content, of which you become aware and agree to immediately take such actions as are necessary to end and prevent any such use, copying, or disclosure. 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.
  3. RIGHTS AND RESPONSIBILITIES REGARDING CONTENT
    1. Content Owner Rights and License to Content.  On behalf of or as the Content Owner, you (i) represent and warrant that the  Content Owner has sufficient rights and all third party consents, permissions or licenses in and to the Content as may be necessary and appropriate for use of the Content with the Products; and (ii) hereby grant to Datto a limited, royalty-free, non-exclusive, assignable license  to copy, reformat, disclose, transmit, display and otherwise use the Content as necessary or desired,  in each case solely for the purposes of providing the Product or Service or as otherwise necessary  for  Datto to exercise its rights under these Terms of Use.
    2. Third Party Administrator Responsibilities Regarding Content and Product Use.  If you are a third party Administrator  managing or using any Product on behalf of a Content Owner,  you represent and warrant that you are acting as an agent on behalf of the Content Owner (who is the principal) and that you are acting within the scope of your agency. Accordingly, you agree to obtain Content Owner’s authorization and comply with Content Owner’s instructions at all times with respect to use of the Product and access to Content, including but not limited to: Service Subscription,  Device settings, backup settings, access controls, management, retention and deletion of Content, transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an Administrator, Content Owner and/or Datto.  Datto expressly may rely on the authorization of any Administrator with respect to access and control of Content.
    3. Content Owner Terms. If you are a third party Administrator managing the Product on behalf of a Content Owner you must ensure that each Content Owner agrees to certain Content Owner Terms as part of a valid, enforceable contract between you and the Content Owner. Upon our request, you must provide evidence of each Content Owner’s acceptance of the Content Owner Terms. You agree to immediately notify us of any known or suspected breach of any Content Owner Terms and to assist us in the enforcement of the same.
    4. Business Associate Agreements. If you are a third party Administrator managing or using a Product for a Content Owner that is a Covered Entity or Business Associate, as defined under U.S. law, you agree to enter into and comply with the terms of an applicable Business Associate Agreement with the Content Owner.  Furthermore you agree to notify us in such event so that you and we may enter into a valid Business Associate Agreement prior to the transfer of any Content related to the Product.  Upon our request you agree to send us a copy of each such Business Associate Agreement between you and the Content Owner.  The terms “Covered Entity,” “Business Associate” and “Business Associate Agreement” will have the same meanings as set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).
    5. Datto’s Use of Content.  Except for the limited license granted hereunder, Content Owner retains all of its existing rights in and to Content.  We will use the Content only as necessary to provide and support the Products and will not otherwise access Content other than as permitted under these Terms of Use, as described in our Privacy Policy, or as authorized by an Administrator for support.
  4. MAINTENANCE,  SUPPORT AND TRAINING
    1. Datto’s Maintenance and Support. We will provide reasonable support for the Products in accordance with our then-current maintenance and support Policies, and any applicable Service Level Agreement located on an Online Portal, as the same may be updated by us from time-to-time.
    2. Your Support. An Administrator is responsible for providing first level support for each Product. By requesting support services directly from us, you represent that you are authorized to do so for that Product and are knowledgeable about the Product, Service and Content involved 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.
    3. 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 Products.  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.
    4. Training. We make available opportunities for training on the Products.  Our training provides instruction on the general use and functionality of the Products 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.
  5. TERM AND TERMINATION
    1. Term. These Terms of Use will apply to you and your right and license to use a Product will commence at the earlier of when (1) you purchase and/or register the Product; and/or (2) you are authorized to be an Administrator of a Product, and continue in effect with respect to that Product until terminated as set forth in this Section 5. The right and license of any third party Administrator to use a Product continues only as long as such Administrator continues to be authorized to act on behalf of the Content Owner.
    2. Termination. Without prejudice to any other of our rights, we may terminate your right to use a Product and the provision of any Service, in our sole discretion, on 10 calendar days’ notice if you fail to comply with these Terms of Use, or if there is a failure to pay any fees due to us for use of the Product and there is a failure to cure such breach within the notice period.  We may terminate immediately in the event:  (a) there is any breach of Section 1 (Use of Product), Section 2 (Limitations on Rights of Use), or Section 9 (Confidentiality); or (b) there is or we reasonably believe there may exist a basis for a claim of Intellectual Property Rights infringement by any third party relating to the Product.
    3. Effect of Termination. In the event of termination for any reason you must immediately stop using the Product and securely destroy all related media and Specifications, if any. The licenses granted hereunder and all Services with respect to a given Product will automatically terminate on expiration or termination under this Section 5. We reserve the right to permanently delete or disable access to all related Content from any remotely located servers owned by or under our control, without liability for such deletion, 60 days after the termination.
    4. 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).
  6. ACCESS AND SECURITY
    1. Your Responsibility for Account and Product Access. You are responsible for any action that you permit, assist or facilitate any person or entity to take related to the Product and associated Content. You are responsible for the security of all access credentials, including all passwords, to the Product.  You are responsible for maintaining the security of any access codes, passwords, technical specifications, connectivity standards or protocols, assigned to you and/or created by you to gain access to an Online Portal, Product and/or Content. You are responsible for all activities that occur in your Online Portal account (“Account”), including any Product or Content access you allow, regardless of whether the activities are undertaken by you, by others on your behalf (including any of your administrative users and/or any Content Owner you authorize). Your Online Portal account may be hosted in the U.S. regardless of where you, the Product or Content related to the Product may be located. You are responsible for securing any necessary consents, if any, related to the hosting location of your Online Portal account.  If you lose your encryption key, you may not be able to access the Content associated with the Product.  You agree to notify us immediately if you learn of any unauthorized use of any access credentials or any other known or suspected breach of security. 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.
    2. Your Responsibility for Security.  You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to access to and use of the Product and Content.  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 local Device access, network connectivity and internet connectivity.  We use physical, technical and administrative safeguards designed to secure Content under our control against accidental or unauthorized loss, access or disclosure.  However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities and you use the Products with all Content at your own risk.
  7. UPDATES AND TESTING
    1. 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.
    2. 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.
    3. Changes to Terms of Use/ Policies/Specifications.  We reserve the right at any time to modify these Terms of Use and updated Terms of Use will be posted within the applicable Product or Online Portal.  We will make reasonable efforts to notify you of material changes and your continued use of any Product after an update will indicate your acceptance of any updated Terms of Use.  If you do not agree to any updated Terms of Use, you must terminate your use of the Product  immediately.  If you provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the Product.   We may also modify and update Policies, Third Party License Terms, Specifications, and other support materials.  All such changes are effective immediately upon posting to the Online Portal and you should review such materials on a regular basis so that you will be apprised of any changes.
  8. USE OF  INFORMATION
    1. Use of Feedback.  If you provide us with reports, comments, suggestions, ideas or other feedback regarding the Products or our business, 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.
    2. Use of Aggregate Data.  Notwithstanding anything else in these Terms of Use or otherwise, we may evaluate and process use of Products and Content in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). We may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to our business.  We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any Administrator or Content Owner.
    3. 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 address, authentication tokens, machine identification, access logs, device settings and Online Portal settings are used by us to provide the Products and operate our business and you agree that we may use such Log Data for such purposes.
  9. CONFIDENTIALITY
    1. Protection of Confidential Information. Both you and we agree to (i) maintain the confidentiality of the Confidential Information of the other party; (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except as necessary for the purpose of using or providing the Products or otherwise in complying with these Terms of Use; (iii) use the same care to prevent disclosure of the Confidential Information of the other party to third parties as it employs to avoid disclosure of its own information of a similar nature, but in no event less than a reasonable standard of care; (iv) use the Confidential Information of the other party solely for the purpose of using or providing the Products or otherwise in complying with these Terms of Use.
    2. 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.
    3. Types of Data. Content, Feedback, Aggregate Data and Log Data will not be deemed to be Confidential Information. Our responsibilities regarding Content are set forth in Section 3.4. Our use of Feedback, Aggregate Data and Log Data are set forth in Section 8.
    4. 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.
    5. 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.
    6. 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.
    7. Return of Confidential Information. Unless it is expressly authorized to retain the other party’s Confidential Information, a party will promptly return or use commercially reasonable efforts to destroy, at the other party’s option, the other party’s Confidential Information upon request or upon any termination of these Terms of Use.
  10. WARRANTY AND DISCLAIMER
    1. Limited Datto Hardware Warranty.  Warranty terms for physical hardware Devices are available on an Online Portal.
    2. YOU ACKNOWLEDGE THAT THE PRODUCTS, INCLUDING ANY 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, EITHER 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 PRODUCTS WILL MEET ANY CONTENT OWNER, ADMINISTRATOR, OR USER 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. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CONTENT OWNER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.
    3. THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
    4. WE DISCLAIM ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY US.
    5. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY COMPONENTS IN ANY PRODUCTS. WE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY COMPONENTS.   YOU SHOULD CONSULT THE RESPECTIVE VENDOR OR MANUFACTURER OF THE THIRD PARTY COMPONENT FOR WARRANTY AND PERFORMANCE INFORMATION.
    6. 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.
  11. LIMITATION OF LIABILITY
    1. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, 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.
    2. 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.
    3. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS OF USE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
    4. Essential Basis. The disclaimers, exclusions and limitations of liability set forth in Sections 10 and 11 and form an essential basis of these Terms of Use and have been relied on by both you and us, and absent such disclaimers, exclusions and limitations of liability, these Terms of Use and the fees applicable to the Products would be substantially different.
  12. INDEMNIFICATION
    1. Indemnification by Datto. We agree to defend you from and against third party claims that a Product in the form supplied to you under these Terms of Use infringes or misappropriates a third party’s patent, copyright or trademark rights and we will indemnify and hold you harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Datto in settlement in connection with any such claim. Our  indemnification obligations will not apply to (i) claims of infringement to the extent based on your combination of the Product with other products, services or software or marks if the infringement could have been avoided by the use of such Product not in such combination; (ii) any modifications to the Product not made by us;  (iii) any damages incurred as a result of your  failure to use any update to the Product we provide; or (iv) use of a Product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions”).  If we determine that a Product is or may become subject to an infringement claim, we may, at our option: (1) procure for you the right to continue to use the Product; or (2) replace or modify the Product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate your use of the Product and will issue a refund of the fees paid (not including Service usage fees for Services already provided) to acquire the initial use of the allegedly infringing Product less reasonable depreciation.  This Section 12.1 represents your sole and exclusive remedy and Datto’s sole and exclusive liability for any infringement claims based on the Products.
    2. Your Indemnification of Datto. You agree to defend us, our licensors and affiliates, and the officers, directors, employees and representatives of each of them (each a “Datto Indemnified Party”), from and against all damages and costs incurred as a result of a third party claim and you will indemnify and hold any and all Datto Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by you in settlement in connection with any such claim, to the extent the claim arises out of (i) your breach of these Terms of Use; (ii) your negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against us; (iii) any of the IP Exclusions referenced in section 12.1; (iv) if you are a third party Administrator, your failure to cause each Content Owner to agree to the applicable Product Terms of Use and/or Content Owner Terms or your actions in excess of the authority granted to you by any Content Owner; (v) your  failure to secure Content, any personally identifiable or Confidential Information in accordance with these Terms of Use, any applicable agreement with a Content Owner, any applicable Business Associate Agreement, and Applicable Law.
    3. Process. The foregoing indemnification obligations are conditioned on any of the indemnified parties: (a) notifying the indemnifying party promptly in writing of such action; (b) reasonably cooperating and assisting in such defense; and (c) 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.
  13. EXPORT CONTROL AND GOVERNMENT USES
    1. Export Compliance. You represent and warrant that in connection with your use of the Products and Content 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 (or Content through use of the Products) in violation of any such export laws, restrictions, controls or regulations.
    2. 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 Content 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), and the rights granted in the Product to such Content Owners are the same as the rights granted to all others under these Terms of Use.
  14. ARBITRATION; CLASS ACTION WAIVER
    1. Arbitration / No Class Action. All claims and disputes arising out of these Terms of Use or the use of any Product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association (“AAA”). Arbitration must be on an individual basis and neither of us may join or consolidate claims in arbitration or arbitrate claims as a representative or member of a class.  Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed under AAA rules for the pertinent claim.  Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award.  Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof.  Costs of arbitration (including reasonable attorneys’ fees) will be made a part of the arbitrator’s award. The arbitration will take place in Fairfield County, Connecticut. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
    2. Claims Not Subject To Arbitration.  Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration: (i) alleged infringement or misappropriation of the other party’s Intellectual Property Rights; (ii) any claims involving a party’s right to indemnification under this Agreement; (ii) your breach Section 2 of these Product Terms of Use; (iii) any claim for temporary or permanent injunctive relief.
    3. 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
    4. 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.
  15. ADDITIONAL PROVISIONS
    1. Construction. The section headings in these Terms of Use are for convenience only, will not be deemed to be substantive and will not be referred to in connection with the construction or interpretation of these Terms of Use. Any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these Terms of Use.
    2. Governing Law. These Terms of Use, if with Datto, Inc., will be governed, construed and enforced in accordance with the laws of the State of Connecticut without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement, if not with Datto, Inc., will be governed in accordance with the laws of the jurisdiction where the applicable Datto affiliate or subsidiary is located and nothing in this Agreement will be deemed to exclude or limit the liability of either party which cannot be limited or excluded by such applicable law.  This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
    3. 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.
    4. Electronic Communications.  You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.
    5. Assignment. You may not assign these Terms of Use or any rights or obligations hereunder (including with respect to any individual Product or Content), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns
    6. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these Terms of Use or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of god, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.
    7. 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.
    8. No Third Party Beneficiaries.  There are no third party beneficiaries to these Terms of Use.
    9. English Language. These Terms of Use have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
    10. 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 0685 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.
    11. Entire Agreement. These Term of Use, Third Party License Terms, any applicable backup Agent Software Licenses, and applicable Policies  available on the appropriate Online Portal constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede 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.
  16. DEFINITIONS
    1. “Administrator” means (i) a Content Owner that controls, manages, uses and/or supports any Product for its own internal use; or (ii) a third party person or entity, other than Datto, authorized by a Content Owner to control, manage and/or use a Product for that Content Owner.    A Product may have multiple Administrators and Datto expressly may rely on the authorization and instructions of any Product Administrator that agrees to these Terms of Use, until Datto receives written instructions to the contrary.
    2. “Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.
    3. “Confidential Information” means any information, other than Content, 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.   Confidential Information specifically excludes Content.  The Products and information available to you through an Online Portal are Datto Confidential Information.
    4. “Content” means data, content or other materials stored, backed-up, hosted, displayed, transmitted, routed, virtualized, processed or communicated using a Product.
    5. “Content Owner” means the person or entity that owns, licenses, lawfully controls or uses Content, or for whose benefit Content is held or transmitted, in connection with a Product.
    6. “Datto Software” means the software technology and all Intellectual Property Rights of Datto and its licensors in any Product, including any embedded software on or comprising Devices.
    7. “Device” means any image-based business continuity and disaster recovery product instance, regardless of whether it is physical hardware, or in virtual or imaged form.
    8. “Enhancement” means any upgrade, update or modification to a Product.  All Enhancements will be subject to these Terms of Use.
    9. “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.
    10. “Online Portal” means a remote web-based application or portal provided by Datto that contains information related to the Product, including the ability to configure, manage, monitor, support and use the Product.
    11. “Product(s)” means any Datto image based business continuity and disaster recovery solutions subject to these Terms of Use, including Devices, Datto Software, and Services as well as all Enhancements to Products.
    12. “Policies” means the terms and conditions of any policies applicable to access, use, and support of the Products.  Policies are published on an Online Portal.
    13. “Services” means all services provided by or on behalf of Datto, including without limitation, business continuity, backup and disaster recovery, technical support, training, Online Portals or other applications provided by Datto.   Datto 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 Devices owned by or under the control of the Content Owner, Administrator or other party; (ii) the use of remotely located servers owned by or under the control of Datto (“Datto Cloud”) ;(iii) the use of Datto Software licensed for use by Content Owner or an Administrator.
    14. “Service Subscription” means the type of Service, Service Term, Payment Term and Retention Plan in which a Device is enrolled, as set forth in the Datto BCDR Service Policies.
    15. “Specifications” means the Policies, documentation, user manuals and any technical publications and materials, as applicable, relating to the Products.  Specifications may be published on an Online Portal.

BCDR CONTENT OWNER TERMS

These Content Owner Terms (“Terms”), including any Exhibits, apply to you as the person or entity that owns, licenses, or lawfully controls the data, files or other content (“Content”) with which a Datto backup and disaster recovery product (“Product”) will be used.  Datto does not provide the Product directly to you.   The Product is sold and provided by Datto, Inc. or one of its subsidiaries or affiliates (“Datto”) directly to the reseller/managed service provider (“Administrator”) that will use and manage the Product on your behalf with your Content.   These Terms apply only if the Product is used and managed by an Administrator other than you.  If you access, use or manage the Product yourself, including for support, you must register with Datto as an Administrator of the Product and accept and agree directly with Datto to the Product Terms of Use.

  1. RIGHTS TO THE PRODUCT
    1. You acknowledge that Datto and its licensors own all intellectual property rights in and to the Product.  You will not engage in or authorize any activity that is inconsistent with such ownership.
    2. The Product may involve the use of third party technology licensed by Datto, the use of which is subject to such third parties’ license or other customer terms.  These terms are attached hereto as Exhibit A.
  2. DATTO’s RIGHTS AND RESPONSIBILITIES REGARDING CONTENT
    1. Datto’s Use of Content.  Datto will use Content only as necessary to provide and support the Product and will not otherwise access Content other than as permitted under the applicable Terms of Use, as described in the Datto Privacy Policy, or as authorized by an Administrator for support.   You and any Administrator you appoint are responsible for your Content and the consequences of its use in connection with the Product.
    2. Datto’s Rights.  In the event that Datto reasonably believes Content or related Product use violates the Product Terms of Use, may disrupt or threaten the operation or security of any computer, network, system or the Product, or may otherwise subject Datto to liability, Datto reserves the right to refuse or disable access to the Product or Content.  Datto may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request.   Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Datto may restrict access to any Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Datto takes any such action without prior notice, Datto will provide notice to the Administrator, unless prohibited by law.
    3. Use of Aggregate Data.  Notwithstanding anything else in these Terms or otherwise, Datto may evaluate and process use of the Product and Content in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Datto may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business.    Datto retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information nor identify any Content Owner or individual.
  3. ADMINISTRATOR
    1. Datto will interact with the Administrator(s) you authorize to operate and manage use of the Product with your Content.   You are not a third party beneficiary of any agreement between Datto and an Administrator.
    2. An Administrator is not an agent of Datto and is not authorized to make any representations or warranties on behalf of Datto regarding the Product or its use.
    3. You are responsible for instructing and authorizing the Administrator with respect to use of the Product including backup settings, management of Content, deletion of Content, and transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, you and/or Datto.
    4. You expressly agree that Datto may rely on the instructions and authorization of the Administrator with respect to use and support of the Product and access and control of your Content.
  4. SECURITY
    1. Datto has implemented and maintains physical, technical and administrative measures designed to help secure Content under Datto’s control against accidental or unlawful loss, access or disclosure.   However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the reasonable measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities.
    2. You acknowledge and agree that the Administrator you authorize to manage use of the Product with your Content has access to and manages your Content. You and/or the  Administrator are responsible,  and in no  event will Datto be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of Datto, including but not limited to local Product access, LAN or internet connectivity.  You and/or the Administrator are responsible for the proper configuration and maintenance of security measures and for determining the security measures appropriate for the Content, including local encryption of sensitive Content
  5. INDEMNIFICATION
    1. You will defend, indemnify and hold harmless Datto from and against any loss, cost, liability or damage, including attorneys’ fees, for which Datto becomes liable arising from any claim relating to your Content, including if it a) infringes or misappropriates the intellectual property rights or other rights of a third party; b) violates any applicable law; or c) otherwise is in violation of these Terms or the Product Terms of Use.
  6. LIMITATIONS OF LIABILITY
    1. THE DATTO PRODUCT, INCLUDING ANY THIRD PARTY COMPONENTS OR TECHNOLOGY, ARE PROVIDED “AS IS.”  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER 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 OR USAGE OF TRADE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
    2. DATTO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.
    3. THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  DATTO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
    4. DATTO DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF DATTO.
    5. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL DATTO OR ANY DATTO LICENSOR OR SUPPLIER BE LIABLE FOR ANY DIRECT, 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, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
    6. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO, 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 DATTO’S OBLIGATIONS HEREUNDER.
DATTO DRIVE TERMS OF USE

These Datto Drive Terms of Use (“Terms” or “Terms of Use”) are an agreement between you and Datto, Inc., on behalf of itself and its affiliates (“Datto” or “we”), regarding the terms that apply to your access to and use of Datto Drive (also referred to in these Terms as the “Product”). These Terms of Use apply to basic and premium Datto Drive accounts.

PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING “I ACCEPT” BELOW OR BY ACCESSING OR USING DATTO DRIVE YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE.

IF YOU ACCEPT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS OF USE AND “YOU” WILL REFER TO THAT LEGAL ENTITY AS THE ACCOUNT OWNER.

If you do not agree to these Terms of Use, you may not access or use Datto Drive.

For ease of reference, capitalized words are defined in the last section or when first used throughout these Terms of Use.

  1. REGISTRATION AND ACCESS TO DATTO DRIVE
    1. Registration. In order to access and use Datto Drive, you must register for an account by providing true, accurate and complete information on the registration form, including a valid non-personal e-mail address. You agree to promptly update all required registration information throughout use of your Datto Drive account (“Account”) in order to keep it accurate and current. Because Datto Drive is for business and professional use, and not for consumer use, the domain or subdomain associated with the email address you provide must be owned by a valid business, organization or other legal entity. You must ensure that no one under 13 may access or use your Account. The first person to register for a Datto Drive account on behalf of an organization will be deemed the Administrator for that Account and any subsequent registration requests we receive from the same organization (determined by email domain) will be referred to the Account Administrator for authorization to become Authorized Users under that organization’s Account. An Administrator can authorize additional Administrators and Authorized Users for a Datto Drive account without the need for those parties to register separately. Each Administrator is also an Authorized User. You may authorize a Partner to begin a registration for you, but you will still be required to agree to these Terms of Use as the account owner in order to use Datto Drive and for your valid Datto Drive Account to be created. We reserve the right to deny any registration for Datto Drive in our sole discretion at any time for any reason.
    2. Hosting/Storage Location. Once you register and a valid account for Datto Drive is created, all Content associated with the account will be stored and hosted at one of our data centers determined by the IP address associated with the Administrator who created the Datto Drive account (as we can reasonably determine from the registration process). Datto Drive accounts associated with IP addresses in the U.S., Canada, Australia/New Zealand and Europe will be hosted and Content stored in the same geographic territory (U.S., Canada, Australia and EEA) as the location of the IP address where the account was created. Datto Drive accounts associated with IP addresses in any other location will be hosted and Content stored in the U.S. You are the controller of all Content in your Account and you are solely responsible for determining the appropriate hosted location for your Account and any subsequent access to Content you allow – either by means of transfer, share or remote access – to or from any geographic area outside the hosted location. Operational Account Information, described below, may be stored or hosted in the U.S., regardless of the geographic location of your Datto Drive Account.
    3. Account Access and Activity. You are responsible for all activities that occur in your Account, regardless of whether the activities are undertaken by you, by others on your behalf (including your Administrators and Authorized Users) or any third party. You will be deemed to have taken and are responsible for any action that you permit, assist or facilitate any person or entity to take related to your Account and these Terms. You are responsible for the security of all of your Datto Drive Account settings and access credentials (including all passwords). If an unauthorized party may be using your Account, if your Datto Drive access credentials are lost or stolen, or if you become aware of any other actual or potential breach of security, you should immediately terminate your Account. You agree that we will not be liable for any loss of any kind you may incur as a result of a) any party using your access credentials; and b) activity within your Account, either with or without your knowledge or authorization.
    4. Administrators and Authorized Users. Administrators are responsible for internal management and administration of your Account. Administrators have the ability to add and delete Authorized Users and to allow, restrict or terminate access to Content and your Account. You are responsible for obtaining all required consents from Authorized Users under applicable data protection and privacy laws as may be needed for you and any Administrators to perform such Account functions and for us to provide Datto Drive. You represent and warrant that we may rely on all instructions and authorizations provided by your Administrators in connection with access to and use of your Account. You are responsible for all acts and omissions of all Administrators and Authorized Users of your Account, and any act or omission by any Administrator or Authorized User which would constitute a breach of these Terms of Use, will be deemed a breach by you. You may, in your sole discretion, authorize a Partner to become an Administrator or Authorized User of your Account, in which case such Partner may have the same authority as any other Administrator or Authorized User, and you as the account owner will be responsible for such Partner’s acts and omissions as is the case with all Administrators and Authorized Users of your Account.
  2. OPERATIONAL ACCOUNT INFORMATION AND CONSENT TO BE CONTACTED. By registering for Datto Drive and providing us with contact information, you consent to (i) us contacting you for operations messages related to your Account and for purposes of sending you promotional communications about Datto and our products and services; and (ii) our sharing your Operational Account Information (described below) with one or more of our trusted third party service providers and/or Partners to contact you about Datto Drive (including for account support or to upgrade your account) or other Datto products and services. Operational Account Information means your contact information and limited operational information about your Account such as storage allotment and usage, when any trial period may expire, and the number of and information about Authorized Users, including name, email and individual storage allotment and usage. If you establish a relationship with a Partner regarding your Account (including purchase), in order to provide you the best possible experience, the same Operational Account Information will be accessible to such Partner through our Partner management portal. You acknowledge and agree that Operational Account Information is hosted in the U.S. and may be transferred or accessed from outside of the geographic area where your Account (and its Content) is hosted. You are responsible for securing any necessary consents, if any, to effect such transfer or access. You may opt out of receiving any promotional communications from us by unsubscribing at http://pages.datto.com/unsubscribe.html; however, we reserve the right to cancel any no cost trial Account if you do so. Please note that if we have already shared your contact information with a Partner prior to your opt out request, you may also need to separately opt out directly with such Partner. You may not opt out of receiving operations messages from us related to your active Account.
  3. USE OF DATTO DRIVE
    1. Right to Use. Subject to these Terms of Use and the receipt by Datto of all applicable fees, we grant you a limited, revocable, non-sublicensable, non-exclusive right to access and use Datto Drive in accordance with these Terms of Use and all applicable laws.
    2. Right to Install Datto Drive Applications. Datto Drive applications allow your Authorized Users to access your Datto Drive account directly from computer devices and mobile devices (“Devices”). Subject to these Terms of Use, Datto grants you a limited, non-exclusive, non-transferable, revocable license to download, install and use Datto Drive applications on any Device owned or controlled by you in order for your Authorized Users to access your Account. Furthermore, any Datto Drive application accessed through or downloaded from a mobile platform or store must be in conformance with any appliance usage rules set forth in such platform or store. If you do not own or control any such Device, you represent and warrant to us that you have the permission and authority of the owner to download Datto Drive software to allow access to Datto Drive through such Device. Datto Drive applications are licensed to you for use with your active Account, are not separately sold and your right to use them terminates upon termination or other expiration of your Account.
    3. Limited Rights. Except for the limited rights granted in these Terms of Use, Datto and its licensors expressly retain all right, title, interest and Intellectual Property Rights in and to Datto Drive, including Datto Drive applications.
    4. Ongoing Payment Requirement. Datto Drive may only be purchased through a Partner and your payment obligation for Datto Drive is between you and a Partner. However, your continued right to use Datto Drive requires our ongoing receipt of payment from your Partner with respect to such use. If we do not receive payment for your Account, we will provide notice and an opportunity to cure such non-payment to your Partner. We may also provide notice to you. It is your responsibility to ensure your Account remains in good standing with the understanding that use of any Datto Drive account that is not properly registered and current in payments is deemed unauthorized, and we will have no obligation to continue to allow access to or use of the Product.
    5. No Cost Trials. The payment requirement will not apply during any no cost trial period for Datto Drive. All other provisions of these Terms, as well as any limitations (such as storage limitations) set forth in the trial offer, will apply during the no cost trial period. Unless you upgrade your Account to a paid Datto Drive account prior to termination or expiration of your no cost trial, all Content in your Account will be permanently deleted or access to it permanently disabled.
    6. Data Storage. When your Account exceeds its Content storage limitation, your continued right to access and use Datto Drive in excess of that limit will be subject to the payment of additional fees.
    7. Beta Services. We may designate certain enhancements to or features of Datto Drive as “Beta Service.” Beta Service will not be ready for use in a production environment and its operation may be unpredictable and lead to erroneous results. You are under no obligation to use a Beta Service. If you choose to use a Beta Service, you agree (i) it is experimental and has not been fully tested; (ii) it may not meet your requirements; (iii) its use or operation may not be uninterrupted or error free and is for purposes of evaluating and testing and providing feedback to us. You agree to report promptly to us any errors or deficiencies in the Beta Service and will hold all information relating to use and performance of the Beta Service in strict confidence and not disclose such information to any unauthorized third parties. Use of any Beta Service is otherwise subject to these Terms of Use. We may modify, terminate or suspend access to use of any Beta Service at any time. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF USE, ALL BETA SERVICE IS PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. You hereby waive any and all claims, now known or later discovered, that you may have against Datto and its suppliers and licensors arising out of your use of any Beta Service.
  4. PREMIUM DATTO DRIVE ACCOUNTS
    1. You may upgrade your Account at any time to any available level of Premium Datto Drive account by purchasing an upgrade from a Partner. These Terms of Use apply to all basic and all available levels of Premium Datto Drive accounts. If you upgrade to a Premium Datto Drive account, you hereby agree to comply with the following additional terms, as applicable to each Premium account level, effective immediately upon upgrade.
    2. Geographic Redundancy. Premium Datto Drive accounts, including all Content, are replicated to a second geographically distant data center from the primary hosting location. As the controller of all Content in your Account, you are solely responsible for determining the appropriate geographically redundant location.
    3. Customization. Certain Datto Drive Premium accounts allow you to customize the theme and domain (URL) of your Account. If you customize your Datto Drive Premium Account, you are responsible for providing a valid SSL certificate for use with your Account’s custom domain. You represent and warrant that you have all right and license in and to any cascading style sheets, logos, trademarks, copyrightable content and domain names (“Customizations”) as may be necessary for use of such Customizations with your Account. You hereby grant to Datto a limited, royalty-free, non-exclusive, assignable license to copy, use, reformat, disclose, transmit and display the Customizations solely for the purposes of providing access to and use of your Account.
    4. Notwithstanding the foregoing, we reserve the right to refuse to implement and host any Customizations to your Account if we believe any Customizations may violate any third party rights, our rights, may subject us to liability or are otherwise objectionable or offensive. In any such case, you made continue to access and use your Account without Customizations.
  5. LIMITATIONS ON RIGHTS OF USE
    1. General Restrictions. You may not nor may you permit or facilitate any third party to: (i) use Datto Drive other than as permitted under these Terms of Use; (ii) remove any Product identification or other notices or proprietary rights notice contained on or in the Product or its Specifications; (iii) access or use Datto Drive in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt your or any other Datto Drive account, or any networks or security systems; (iv) reverse engineer, decompile, disassemble, or attempt to extract the source code from the Product, except to the extent that this restriction is expressly prohibited by applicable law; (v) modify or create derivative works of the Product; (vi) alter any disabling mechanism which may reside in the Product; (vii) sell, resell, subdivide, lease, assign, sublicense, rent, timeshare, or otherwise transfer your Account ; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Product; (ix) access or use the Product to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product.
    2. Limitation on Datto Drive Use/Content. Your use of Datto Drive and Content must at all times be in compliance with all applicable foreign, federal, state and local laws, rules and regulations. The Product and Content may not (i) be used to send any unsolicited commercial email or invitation; (ii) be used to request, collect, store, disclose or transfer any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any applicable privacy law or regulation; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise unlawful; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation; (vi) contain or be used 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; (vii) violate the terms of any agreement or other terms of use to which you or any Content is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence (“Minors”), or to harm Minors in any way, or that would subject us to any local or international law, rule, or regulation governing children’s privacy or otherwise related to protecting Minors.
    3. Datto’s Rights. In the event that we reasonably believe your use of Datto Driver any Content in your Account: (i) violates any of the restrictions 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 refuse or disable your access to Datto Drive or Content. Datto may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request. Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, we may restrict access to Datto Drive or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we take any such action without prior notice, we will provide notice to the Administrator within a reasonable time, unless prohibited by law.
  6. RIGHTS AND RESPONSIBILITIES REGARDING CONTENT
    1. Rights to Content. You are responsible for all Content in your Account. You represent and warrant that you have sufficient rights and all third party consents, permissions or licenses in and to any Content as may be necessary and appropriate for use of the Content with Datto Drive. You hereby grant to Datto a limited, royalty-free, non-exclusive, assignable license to copy, use, reformat, disclose, transmit and display the Content solely for the purposes of providing access to and use of Datto Drive according to these Terms of Use.
    2. Datto’s Use of Content. As between you and Datto, you retain your rights in and to the Content, and we do not acquire any rights with respect to Content except as expressly permitted under these Terms of Use. Datto will use the Content only as necessary to provide and support Datto Drive and will not otherwise access or disclose Content other than as permitted under these Terms of Use, as described in our Privacy Policy, or as authorized by an Administrator.
    3. Datto Drive has features that allow you to control the means by which you share and otherwise allow access to Content in your Account. You are solely responsible for all acts and omissions involving Content and access you allow or restrict to such Content.
  7. THIRD PARTY SERVICES AND APPS
    1. Interaction with Third Party Services. Datto Drive has features that facilitate access to third party sites or applications, including file storage and sharing services offered by third parties (“Third Party Services”). We do not endorse, support or control any Third Party Services and is not responsible or liable for such Third Party Services or any losses or errors that result from your use or interaction with any Third Party Service in connection with Datto Drive. You authorize us to allow providers of those Third Party Services to access Content in your Account as required for the interoperation of such Third Party Services with Datto Drive. You further authorize us to access content in Third Party Services as required for the interoperation and use of any Third Party Service in connection with Datto Drive. We will not be responsible or liable for any disclosure, modification or deletion of Content resulting from any such access by Third Party Services.
    2. Use of Third Party Developed Applications. Third party developers are able to create applications that connect to and enable certain features for use with Datto Drive (“Third Party Apps”). We do not endorse, support or control any Third Party Apps and is not responsible or liable for such apps or any losses or errors that result from your use or interaction with any Third Party Apps in connection with Datto Drive. We will not be responsible or liable for any disclosure, modification or deletion of content resulting from interaction between Datto Drive and your use of any Third Party App.
    3. SECURITY Datto Drive provides features designed to help you safeguard Content in your Account. You are responsible for safeguarding access credentials including user names and passwords. You are responsible for security settings for and within your Account and are strongly encouraged to enable and utilize Content encryption and anti-virus features within Datto Drive.
  8. MAINTENANCE AND SUPPORT
    1. Primary support for no cost trial Datto Drive accounts is available solely through knowledge base materials. Primary support for Premium Datto Drive accounts is provided by the Partner through which you purchase Datto Drive. Support may also be available through community forums, although we do not endorse nor make representations about any materials we do not publish in our Datto Drive knowledge base.
    2. Support Authorization. If we do provide support directly, we may rely on the instructions and authorizations given by any Administrator for your Account, and we will have no obligation to inform any other Administrator of the Product of the same.
  9. TERM AND TERMINATION
    1. Term. These Terms will apply to you and your right to use Datto Drive will commence when you register and create a valid Datto Drive account and continue in effect as set forth in this Section.
    2. Expiration of Trial. Your right to continue to use Datto Drive will terminate at the expiration of any no cost trial period unless prior to such expiration you agree to upgrade your Account to a paid account purchased through one of our Partners. You may terminate your no cost trial to Datto Drive at any time by following the instructions to terminate your account in the appropriate knowledge base article.
    3. Termination. Without prejudice to any other rights, we may terminate your right to use Datto Drive in our sole discretion if you fail to comply with any of these Terms of Use, if there has been no activity associated with any no cost trial account for a period of 30 days, or if there is a failure to pay any fees due to Datto for use of the Product. We may also terminate your right to use Datto Drive if the Product is discontinued it is no longer supported, or if we determine in our sole discretion that we may be subject to liability if we continue to provide access to Datto Drive to you.
    4. Effect of Termination. In the event of termination of your Account for any reason you must immediately stop using the Product and securely destroy or uninstall all copies of the Datto Drive application(s) on any Devices. We reserve the right to permanently delete or permanently disable access to all Content in a terminated Datto Drive account, without liability for such deletion, 30 days after termination. It is your responsibility to download, transfer or otherwise secure all Content from your Account prior to our deletion of the same. We disclaim all responsibility and you agree that we will not be liable for any loss of your Content or any damages arising from our deletion of any Content in your Account following termination of your Account.
  10. UPDATES / CHANGES
    1. Right to Change Datto Drive. We reserve the right at any time, in our sole discretion, to make enhancements to, replace, modify, discontinue or add to Datto Drive, including any Datto Drive application, and all Specifications associated with the use of Datto Drive.
    2. Changes to Terms of Use. We reserve the right at any time to modify these Terms of Use.  We will make reasonable efforts to notify you of material changes and your continued use of Datto Drive will be deemed your acceptance of any updated Terms of Use. If you do not agree to any updated Terms of Use, you must terminate your use of Datto Drive immediately.  If you provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the Product.
  11. USE OF INFORMATION
    1. Feedback. You may provide voluntary suggestions, innovations, improvements, enhancement requests, recommendations, or other information regarding Datto Drive (collectively, “Feedback”). If you provide any Feedback to us (either directly or through any third party), you agree that we may collect, process and use the Feedback. If any license is required under your Intellectual Property Rights to make use of the Feedback, you hereby grant Datto an irrevocable, exclusive, perpetual, royalty-free, transferable license to use, with right of sublicense, the Feedback in connection with our business, including any Product.
    2. Use of Aggregate Data. Notwithstanding anything else in these Terms of Use or otherwise, we may evaluate and process the use of Datto Drive and Content in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). We may use and share such Aggregate Data to improve Datto Drive, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business. We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information nor identify any individual persons.
    3. Log Data. Operational data concerning use of Datto Drive, including but not limited to, information servers automatically record relating to the access and use of Datto Drive, such as IP address, authentication tokens, access logs, settings, and permissions are used to enable Datto Drive functionality and we may use such Log Data without restriction. We may automatically upload information about your computer or Devices, your use of Datto Drive and its performance.
  12. WARRANTY DISCLAIMER
    1. DATTO DRIVE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER 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 OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PRODUCT WILL MEET ANY REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
    2. DATTO MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF DATTO DRIVE WILL SUPPORT YOUR COMPLIANCE WITH LAWS AND REGULATIONS, INCLUDING ANY LAW OR REGULATION SPECIFICALLY APPLICABLE TO PARTICULAR USERS OR INDUSTRIES AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.
    3. DATTO DRIVE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
    4. DATTO DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR ( ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY DATTO OR ANY OF OUR AFFILIATES, CONTRACTORS OR AGENTS.
    5. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY
    6. ADDITIONAL DATTO WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF DATTO’S OBLIGATIONS HEREUNDER.
  13. LIMITATION OF LIABILITY
    1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DATTO OR ITS 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 DOCUMENTATION OR THE COST OF RECREATING THE SAME ARISING OUT OF THE USE OR INABILITY TO USE DATTO DRIVE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT , STRICT LIABILITY OR OTHERWISE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE CUMULATIVE LIABILITY OF DATTO AND ITS SUPPLIERS/LICENSORS FOR ALL CLAIMS AND DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR STRICT LIABILITY) WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES RECEIVED BY DATTO FOR YOUR USE OF DATTO DRIVE IN THE 6 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
    2. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS OF USE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
    3. Essential Basis. The disclaimers, exclusions and limitations of liability set forth above form an essential basis of these Terms of Use and have been relied on by both you and Datto. You acknowledge and agree that absent such disclaimers, exclusions and limitations of liability, these Terms of Use and the fees due for use of Datto Drive would be substantially different.
  14. INDEMNIFICATION
    1. Your Indemnification of Datto. You agree to defend, indemnify and hold harmless Datto, its licensors and affiliates, and the officers, directors, employees and representatives of each of them, from and against all third party claims and all related damages, liability and costs (including reasonable attorneys’ fees) arising out of your (i) breach of these Terms of Use; (ii) your acts or omissions resulting, in whole or in part, in a third party claim being asserted against Datto; (iii) your misuse of Datto Drive including any combination of Datto Drive with other products, services or software not provided by Datto; (iv) your use, collection, or any other authorized or unauthorized access to or use of Content. We reserve, and you grant to us, the right to assume the exclusive defense and control of any matter subject to indemnification by you. All rights and duties of indemnification that are set forth herein shall survive termination of these Terms of Use.
  15. DMCA
    1. We will respond to claims of copyright infringement involving use of Datto Drive if you report such claims to Datto by completing a DMCA Notice. Our designated agent for notice of alleged copyright infringement is:

DMCA Copyright Agent Datto, Inc. 101 Merritt 7 Norwalk, CT 06851

Email: copyrightdmca@datto.com

  1. EXPORT CONTROL AND GOVERNMENT USES
    1. Export Control. You may not export, directly or indirectly, any Content (through use of Datto Drive) to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It is your responsibility to comply with such export laws, rules and regulations including the Export Administration Regulations, the International Traffic any in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
    2. Government Entities. If Datto Drive is to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon us unless specifically agreed to by us in writing. If you are a U.S. Government entity, Datto Drive 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).
  2. MISCELLANEOUS
    1. Arbitration / No Class Action. All disputes arising from these Terms of Use will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association. Arbitration must be on an individual basis and neither of us may join or consolidate claims in arbitration or litigate or arbitrate claims as a representative or member of a class. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) will be made a part of the arbitrator’s award. The arbitration will take place in Fairfield County, Connecticut. Notwithstanding the foregoing, each of us retain the right to seek and obtain preliminary and permanent injunctive relief on an individual basis from a court specified in the following section.
    2. Governing Law; Jurisdiction; Venue. These Terms of Use will be governed and enforced in accordance with the laws of the State of Connecticut without reference to conflicts of law principles. The Parties agree that the exclusive jurisdiction for any permitted actions connected with these Terms of Use will be in the state and federal courts located in the State of Connecticut, and the Parties hereby agree to submit to the jurisdiction and venue of the courts of the State of Connecticut. These Terms of Use will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
    3. Force Majeure. Any delay in or failure of performance of either party (excluding payment obligations) will not constitute a default under these Terms of Use or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of god, fire, flood, war, strikes, loss of any necessary utility or interruption of power or communications sources or connections, failures in Internet or associated intranets, computer virus or other malicious code released by a third party, the terrorist or illegal acts of a third party, changes in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder.
    4. No Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Use, including any Authorized Users of your Account.
    5. Severability. If one or more of the provisions herein shall be invalid, illegal, or unenforceable in any respect, each such provision will be deemed modified to the extent necessary and possible to render it valid and enforceable. Notwithstanding the foregoing, the unenforceability or invalidity of any provision will not affect any other provision in these Terms of Use, and the same continue in full force and effect, and be construed and enforced as if such provision had not been included, or had been modified as above provided, as the case may be.
    6. Assignment. You may not assign any of your rights or delegate your obligations under these Terms of Use without our written consent. We may assign our rights and duties under these Terms of Use to any affiliate or any other entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of Datto.
    7. No Waiver. Our failure or delay to enforce any provision of these Terms of Use or respond to any breach will not operate or be construed as a waiver or prevent us from taking any permitted action to prevent further breaches.
    8. Survival. All provisions of these Terms which by their nature should be deemed to survive (including but not limited to use of information, warranty disclaimer, limitation of liability, indemnification, arbitration/no class action) will survive termination or expiration of your Account or these Terms of Use as applicable to you.
    9. Entire Agreement. These Terms of Use and all Specifications constitute the entire understanding of Datto and you 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 these Terms of Use will be binding on us unless it is in writing and signed by both Parties.
    10. Construction. The section headings in these Terms of Use are for convenience only, will not be deemed to be substantive and will not be referred to in connection with the construction or interpretation of these Terms of Use. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of these Terms of Use.
  3. DEFINITIONS
    1. “Administrator” means any individual(s) designated by a Datto Drive account owner that controls or manages Datto Drive for or on behalf of the account owner. An Administrator has the ability to add and delete Authorized Users and to allow, restrict or terminate access to Content in a Datto Drive account. Each Datto Account may have multiple Administrators and Datto expressly may rely on the authorizations and instructions of any Administrator, until Datto receives instructions to the contrary.
    2. “Authorized User” means any individual including Administrators authorized by the Datto Drive account owner to have access and use of the owner’s Datto Drive account.
    3. “Content” means files, content or other materials that may be uploaded to a Datto Drive account for storage, sharing, displaying, processing, or communicating through use of Datto Drive.
    4. “Datto Drive” means the software and technology and all Intellectual Property Rights of Datto and its licensors in the Datto Drive service, website, and applications for installation on mobile or computer Devices, including all features, improvements and Specifications.
    5. “Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, design 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.
    6. “Partner” means an independent party authorized to sell Datto Drive.
    7. “Specifications” means any written or electronic policies, documentation, technical or knowledge base publications, as applicable, relating to access, use and support of Datto Drive.
NOT FOR RESALE POLICY
  1. The Datto Not for Resale (“NFR”) program supports Datto partners by providing discounted products for our partners’ internal use, including for demonstration of the product’s features to end‐user customers in a non-production environment. The NFR program is open to any active Datto partner in good standing. Certain NFR products may be available only in certain regions. Current NFR eligible products, which are subject to change, may be found in the Global Partner Program Resources.
  2. NFR product price is determined by applying the applicable NFR discount (based on tier in the current Datto Global Partner Program) to the current published list price for the product, exclusive of tax and delivery charges, at the time of product purchase. No additional discounts or credits will be given if a partner becomes eligible for a different discount at any time after purchase. Discounts on NFR products (including NFR service applicable to NFR products) may not be combined with any other promotions, discounts, special pricing, rebates, or incentive programs.
  3. Each partner is eligible for 1 NFR product per product family unless otherwise specifically authorized; NFR products a partner has already purchased or received through any other program or giveaway count toward the 1 NFR product in that product family.
  4. Applicable NFR products must be registered for NFR eligible service at time of purchase or delivery. Service for NFR products will be available for as long as the NFR product is enrolled in a valid NFR service subscription, applicable service subscription fees are current, and the product/service continues to be generally made available and supported by us and continues to be eligible for the NFR program.
  5. A Partner may not (a) use an NFR product to provide managed services for, or back up any data from, any other party; or (b) sell, lease, license, assign or otherwise transfer any NFR product to any other party.
  6. An NFR BCDR device may be upgraded to a larger eligible NFR BCDR device in accordance with Datto’s Upgrade Policy and eligible upgrade paths in effect at the time of upgrade. In no event will the upgrade credit for a standard upgrade exceed the lesser of the NFR cost of the Upgrade Device and the discounted amount actually paid for the Original NFR Device. Field upgrades for NFR BCDR devices will be priced at the difference between the list price (at the time of upgrade) for the Original NFR Device and the list price (at the time of upgrade) of the Upgrade NFR Device. Service discounts on an Original NFR Device will not apply to service on the Upgrade NFR Device. Any sale, transfer or unauthorized use of the NFR BCDR product will void any ability to upgrade.
  7. New NFR hardware products are covered by the applicable Datto Standard Limited Hardware Warranty. The Warranty is non-transferable and any sale, transfer or unauthorized use of the NFR product will void the Warranty.
  8. Any NFR BCDR with no charge service will remain free of charge for as long as the original Device (or its warranted replacement) remains actively deployed by you without interruption in service and you remain an authorized Datto partner. Any service on such a product that is not NFR eligible (or any NFR eligible service after a service interruption or product upgrade) will be at the then current list price.
  9. Partner must obtain the prior written approval of Datto if Partner seeks to transfer an NFR product, or any NFR service subscription, in connection with the sale, transfer, merger, consolidation or other transaction involving all or part of Partner’s business or assets.
  10. Except as explicitly modified by this NFR policy, the purchase and use of any NFR product/service is governed by the Datto’s Sales Policies and the Product Terms of Use applicable to the NFR product/service. In the event of any breach of any agreements between you and Datto or any Datto affiliate, we may terminate your right to purchase and or use any NFR product/service.
  11. The NFR program, including the specific NFR eligible products, services and discounts, is offered at Datto’s sole discretion and approval, and is subject to change or termination at any time without notice.
  12.  

WEBROOT

WEBROOT SUBSCRIPTION AGREEMENT FOR BUSINESS

End User may acquire and use the Service only pursuant to the terms of a Quote, this Agreement, any document referenced in this Agreement (such as Webroot’s Privacy Statement and Supplement, each identified below) and any Attachment to this Agreement (collectively, the “Subscription Documents”). The Subscription Documents constitute the entire agreement between End User and Webroot with respect to the Service and End User’s use thereof. The Subscription Documents supersede all prior written and oral agreements between End User and Webroot regarding the Service and End User’s use thereof. All defined terms in this Agreement have the meanings given to them in Attachment 1 or in the section in which such terms are first defined. Definitions denoting the singular have a comparable meaning when used in the plural, and vice versa.

If an individual is downloading, installing, or configuring the Service on behalf of End User, whether in such individual’s capacity as an employee, independent contractor, or outsourced agent, such individual represents and warrants that he or she is at least 18 years old and has the full right, power, and authority to enter into this Agreement on behalf of End User, that this Agreement has been authorized by End User, and that this Agreement will constitute the legal, valid, and binding obligation of End User, enforceable against End User in accordance with its terms.

BY CLICKING “AGREE”, OR OTHERWISE MANIFESTING ASSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE FIRST DATE ON WHICH ANY SUCH ACTION OCCURS, THE “EFFECTIVE DATE”), END USER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY IT. IF END USER DOES NOT AGREE, END USER IS NOT AUTHORIZED TO USE THE SERVICE.

1. Orders; Acceptance. End User may select the Service via a Quote provided by Webroot or a Reseller. Following receipt of a Quote, End User may submit a purchase order to Webroot or a Reseller. HOWEVER, ACCEPTANCE OF A QUOTE IS EXPRESSLY LIMITED TO AND CONDITIONED ON THE TERMS CONTAINED IN THE QUOTE, INCLUDING ANY REFERENCE TO THIS AGREEMENT THEREIN. WEBROOT OBJECTS TO ANY TERMS IN END USER’S ACCEPTANCE OR CONFIRMATION OF ANY QUOTE (INCLUDING ANY TERMS CONTAINED OR REFERENCED IN ANY PURCHASE ORDER) THAT ARE ADDITIONAL TO OR DIFFERENT FROM THE TERMS OF THE SUBSCRIPTION DOCUMENTS. ANY SUCH ADDITIONAL OR DIFFERENT TERMS, WHETHER RECEIVED PRIOR TO OR AFTER THE DATE OF A QUOTE, WILL BE DISREGARDED BY THE PARTIES UNLESS SUCH TERMS ARE SPECIFICALLY AGREED TO IN A WRITING SIGNED BY WEBROOT. THIS INCLUDES TERMS SET FORTH IN ANY CLICK-WRAP, CLICK-THROUGH, OR BROWSE-WRAP AGREEMENTS. IN THE EVENT OF A CONFLICT BETWEEN A QUOTE AND ANY OTHER SUBSCRIPTION DOCUMENTS, THE TERMS IN THE QUOTE WILL CONTROL.

2. Modifications. Webroot may modify this Agreement and any linked or referenced documents mentioned in this Agreement following notice to End User, which may be provided via in-product messaging or to the email address Webroot has on file for End User. By agreeing to the modified Agreement or using the Service after receiving notice of the modified Agreement, End User agrees to all of the modifications.

3. The Service. The particular Service ordered by End User will be identified on one or more Quotes. End User is only licensed to use the particular Service identified on such Quote and for which End User has received a valid license key from Webroot, including via a Reseller. End User acknowledges and agrees that its access to and use of the Service and the Service Documentation is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Webroot with respect to future functionality or features. Specific terms and conditions applying to particular Services are set forth in Attachment 2 to this Agreement. If End User provides Managed Services as an MSP, the rights, conditions, and obligations set forth in Attachment 3 apply to End User’s use of the Service.

4. License to Software. If the Service includes Software, the terms of this Section 4 will apply. For so long as End User complies with Sections 6, 7, and 14, Webroot hereby grants End User, during the Subscription Term, a non-exclusive, non-sublicensable, non-transferable license: (A) to reproduce and use the Software, in such quantities as are set forth on an applicable Quote, as necessary for End User’s internal business purposes and solely as a component of the Service; and (B) to use and make a reasonable number of copies of the Service Documentation (if any is provided) as necessary to use the Service. For the avoidance of doubt, Webroot does not grant End User a right to modify, publicly display, publish, or distribute the Service Documentation. End User receives no rights to the Software other than those specifically granted in this Section 4.

5. Right to Access.

5.1. Right to Access Cloud Components. For so long as End User complies with Sections 6, 7, and 14, End User may, during the Subscription Term, access and use the Cloud Components solely for End User’s internal business purposes in accordance with the Subscription Documents and not for resale or to provide services to or on behalf of third parties.

5.2. Webroot Console. End User may be required to access a Service through Webroot’s Console, which will allow End User to configure or interact with the Service. To use the Console, End User must create an account by registering certain information with Webroot, including an email address, phone number, and a password (“Login Information”). End User is solely responsible for any actions taken using its Login Information. End User must notify Webroot immediately upon discovery of any unauthorized use of its Login Information or unauthorized access to, or use of, its account. End User acknowledges that Webroot uses Login Information according to Section 12 (Information Collected by the Service).

6. End User Requirements. End User’s use of the Service is dependent on the type of license purchased (e.g., Devices, seats, Individuals, etc.), as identified in an applicable Quote, and as further described in Webroot’s Licensing Definitions and Guidelines Supplement, which is currently available at http://www.webroot.com/us/en/company/about/licensing-definition-guidelines for the English language version and other URLs provided by Webroot for other language versions (the “Supplement”). THE DEFINITIONS IN THE SUPPLEMENT CONTROL OVER ANY CONFLICTING DEFINITIONS PROVIDED TO END USER BY A DISTRIBUTOR OR RESELLER. End User must comply with all terms and restrictions set forth in a Quote, as supplemented by the Supplement.

7. Conditions on Use. As a condition to the rights granted in Sections 4 (License to Software) and 5 (Right to Access), End User must not, nor permit any Individual or third party to: (A) access or use the Service in a manner not permitted by the Subscription Documents; (B) circumvent any restrictions or mechanisms intended to limit use of the Service to a particular authorization, entitlement, or subscription; (C) modify or prepare derivative works of the Service; (D) except for the limited rights granted to MSPs under Attachment 3, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any portion of the Service to any third party, including in connection with any hosting, time-sharing, service bureau, software as a service, cloud, or other technology or service; (E) reverse engineer, disassemble, or decompile any software used to provide the Service, except to the extent permitted by law; (F) alter or remove any copyright, trademark, or proprietary notices, credits, or legends provided through the Service or on the Service Documentation; (G) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person or entity; (H) use the Service in violation of any applicable law, directive, regulation, or order; (I) input, upload, transmit, or otherwise provide to or through the Service, any information or materials that are injurious or contain, transmit, or activate any malicious or harmful code; (J) damage, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service or Webroot’s provision of services to any third party, in whole or in part; or (K) access or use the Service for purposes of competitive analysis of the Service, or for benchmarking or stress testing of the Service, or the development, provision, or use of a competing service or product. If End User is an MSP, the conditions set forth in Attachment 3 also apply to End User’s use of the Service.

8. End User Requirements.

a. The Service requires an active Internet connection in order for the Software to communicate with one or more of Webroot’s hosted databases (“Webroot Databases”). Certain features and functionality, including, without limitation, scanning programs and URLs for threats and receiving threat removal instructions, may not work if End User does not have an active Internet connection. In addition, Mobile Software may not work if End User does not have SMS functionality. The Software also may send certain Personal Data to the Webroot Databases for the purposes described herein and in Webroot’s Privacy Statements.

b. END USER IS SOLELY RESPONSIBLE FOR MAINTAINING ITS OWN INTERNET AND DATA CONNECTIONS AND SMS FUNCTIONALITY. END USER ACKNOWLEDGES THAT THE WEBROOT DATABASES AND OTHER COMPONENTS OF THE SERVICE THAT ARE ACCESSED OR USED THROUGH INTERNET CONNECTIONS OR VIA SMS FUNCTIONALITY MAY BE SUBJECT TO END USER’S INTERNET SERVICE PROVIDER’S AND TELEPHONE SERVICE PROVIDER’S FEES AND DOWNTIME FROM TIME TO TIME.

c. As between End User and Webroot, Webroot has and will retain sole control over the operation, provision, maintenance, and management of the Service, including: (1) Webroot’s software, hardware, servers, databases, systems, and infrastructure; (2) the location(s) where the Service is performed, including in the United States, in countries outside the United States, or outside the borders of the country in which End User or End User’s systems are located; and (3) the performance of any support services and any maintenance, upgrades, corrections, and repairs. Notwithstanding the foregoing, End User may select certain settings, configured through the Webroot Console, to best meet certain demands of its technical infrastructure.

9. Upgrades. Any upgrades to the Services, including to the Software or Cloud Components, will be subject to the terms of the Subscription Documents or such other terms provided by Webroot to End User with such upgrades. Provided that the functionality of the Service is not substantially decreased during the Subscription Term, Webroot may at any time without notice discontinue or modify any characteristic of the Service.

10. Equipment; Limited Warranty. If Webroot provides Equipment to End User in connection with the Service, the terms of this Section 10 will apply.

10.1. Any price for the Equipment will be as set forth in the applicable Quote. Unless otherwise set forth in the Quote, delivery will be FOB Webroot’s facility. Shipping and insurance charges will be as set forth in the Quote.

10.2. Unless otherwise set forth in the Quote, title to the Equipment will remain with Webroot, and End User must return the Equipment to Webroot following the expiration of the Subscription Term or the earlier termination of this Agreement.

10.3.Webroot warrants to End User that the Equipment, as delivered, will be free from defects in materials and workmanship for a period of one year from the date such Equipment is delivered to End User (“Equipment Warranty Period”), when used solely to access the Service in accordance with this Section 10. Webroot’s sole liability and End User’s exclusive remedy for Equipment that fails to conform to this limited warranty (“Nonconforming Equipment”) is limited to repair or replacement of such Nonconforming Equipment, at Webroot’s sole option. Return of Nonconforming Equipment must be made only according to Webroot’s then-current return and return material authorization policies or practices. Webroot will pay for Webroot-required shipping and insurance for Nonconforming Equipment, subject to End User’s compliance with such policies or practices. The warranty for the repaired or replaced Equipment is limited to the remaining duration of the original limited warranty for the Nonconforming Equipment. This limited warranty does not apply to any Equipment that is subjected to unusual physical or electrical stress, misuse, neglect, improper testing or storage, or repair by any party other than Webroot. The above warranty is for End User’s benefit only, and is non-transferable.

10.4.In the event a warranty claim relating to the Service is made under Section 17 after the expiration of the Equipment Warranty Period, and the non-conformity is a result of a failure of the Equipment, then, as Webroot’s sole obligation in relation thereto, Webroot will use commercially reasonable efforts to assist End User to acquire replacement Equipment at End User’s expense. Webroot does not make any warranty as to the continued availability of replacement Equipment.

10.5. The Equipment may contain Third-Party Software or Open Source Software that is not part of the Service, but is required for the operation of the Equipment. End User, and not Webroot, is responsible for obtaining and complying with any third party licenses for such Third-Party Software or Open Source Software.

11. Evaluation or Beta Versions. If End User has signed up for evaluation or beta services, then the provisions of this Section 11 will apply and control over any other conflicting terms of this Agreement. If Webroot provides the Evaluation/Beta Service to End User, End User may access and use such Evaluation/Beta Service for internal use only in a non-production, testing-only environment during the Evaluation/Beta Period for purposes of internal testing and evaluation. When the Evaluation/Beta Period expires, End User’s right to access and use the Evaluation/Beta Service expires and Webroot may disrupt or disable End User’s authentication credentials and access to the Evaluation/Beta Service. If End User desires to use the Service after the Evaluation/Beta Period, End User must acquire the appropriate rights. END USER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION AND USE OF THE EVALUATION/BETA SERVICE. THE EVALUATION/BETA SERVICE MAY NOT BE COMPLETE OR FULLY FUNCTIONAL, AND WEBROOT HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH REGARD TO THE EVALUATION/BETA SERVICE, WHICH IS MADE AVAILABLE TO END USER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WEBROOT’S OBLIGATIONS IN SECTION 18 DO NOT APPLY TO THE EVALUATION/BETA SERVICE. WHERE LEGAL LIABILITY SURROUNDING THE EVALUATION/BETA SERVICE CANNOT BE EXCLUDED, BUT MAY BE LIMITED, THE AGGREGATE LIABILITY OF WEBROOT AND ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES WILL BE LIMITED TO THE SUM OF 50 UNITED STATES DOLLARS (OR THE THEN-CURRENT VALUE IN THE RELVANT LOCAL CURRENCY) IN TOTAL. Webroot does not guarantee that it will continue to make the Evaluation/Beta Service available under this Agreement or at all.

12. Information Collected by the Service.

12.1. Privacy Statements. The Service may collect certain Personal Data about End User’s Individuals. Webroot will treat such Personal Data in accordance with its Privacy Statements available at https://www.webroot.com/us/en/legal/privacy (the “Privacy Statements”). Webroot may update the Privacy Statements pursuant to the terms set forth in such statements or by publishing the revised terms on its website and providing an email to End User regarding such publication.

12.2.Transfer of Personal Data. WEBROOT MAY TRANSFER END USER’S AND INDIVIDUALS’ PERSONAL DATA TO ITS LOCATIONS IN THE UNITED STATES AND OTHER JURISDICTIONS. END USER AGREES AND CONSENTS TO SUCH TRANSFER AND PROCESSING, INCLUDING FOR LOGIN INFORMATION, AND ACKNOWLEDGES THAT IT IS NECESSARY FOR THE PERFORMANCE OF THIS AGREEMENT. PLEASE NOTE THAT END USER’S AND ITS INDIVIDUALS’ PERSONAL DATA MAY NOT BE SUBJECT TO THE SAME CONTROLS AS THOSE OF END USER’S CURRENT LOCATION. END USER CONSENTS TO THE USES DESCRIBED ABOVE, INCLUDING BUT NOT LIMITED TO HAVING ITS INDIVIDUALS’ PERSONAL DATA TRANSFERRED TO AND PROCESSED IN THE UNITED STATES AND OTHER JURISDICTIONS. END USER ACKNOWLEDGES THAT ITS CONSENT TO WEBROOT’S USE OF PERSONAL DATA IS FREELY GIVEN AND INFORMED.

12.3. Acknowledgement. End User acknowledges that it is responsible for its Individuals and for ensuring that each of its Individuals provides freely given, specific, informed, and unambiguous consent to the processing of such Individual’s Personal Data by Webroot.

13. Ownership. The Service is offered on a subscription basis, and not sold. Copies of Software (if any) created or transferred pursuant to this Agreement are licensed, not sold, and End User receives no title to or ownership of any copy of the Software itself. As between End User and Webroot, Webroot is and will remain the sole and exclusive owner of all right, title, and interest in and to the Service (including the Software and all other software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service) and Service Documentation, including all derivative works of each of the foregoing, and all Intellectual Property Rights to each of the foregoing. If End User provides any suggestions or feedback to Webroot regarding any aspect of the Service or Evaluation/Beta Service, End User hereby assigns all of its right, title, and interest in and to such suggestions or feedback without compensation by Webroot. End User acknowledges that Webroot has expended and will expend significant resources in gathering, assembling, and compiling Resultant Data, and that such data constitutes the valuable property of Webroot, including but not limited to as a compilation under U.S. copyright laws and as trade secrets under applicable trade secret laws. Webroot reserves all rights not expressly granted to End User in this Agreement.

14. Fees and Payment.

14.1. Fees. End User is responsible for paying Webroot or a Reseller, as applicable, the Fees without setoff or deduction. Unless otherwise stated in writing, Webroot or a Reseller, as applicable, will invoice End User in advance for the Fees for the Subscription Term. All Fees are guaranteed and non-refundable. If End User’s subscription to the Service renews, Webroot or a Reseller, as applicable, will, at or around the end of the then-current Subscription Term, invoice End User the Fees for the renewal Subscription Term. Webroot reserves the right to increase the Fees in its discretion prior to any renewal Subscription Term, provided that Webroot will notify End User of such increased Fees.

14.2. Payment. If End User purchased its subscription from Webroot, then End User must pay Webroot the Fees within 30 days of the date of Webroot’s invoice.

14.3. Records. Upon Webroot’s reasonable request, End User must allow Webroot and/or its agents or representatives to review End User’s relevant records to ensure End User’s compliance with the terms of this Agreement. 14.4. Taxes. The Fees exclude any taxes. End User is responsible for payment of all taxes applicable to the Software and Service, including without limitation all federal, state, and local sales, use, excise, and value-added taxes, with the exception of those taxes based solely on Webroot’s net income. End User will make all payments of Fees to Webroot free and clear of, and without reduction for, any withholding taxes. End User must reimburse Webroot for any interest or penalties assessed on Webroot as a result of End User’s failure to pay taxes in accordance with this Section 14.4, and for all of Webroot’s fees and costs incurred in enforcing this Section 14.4, including, without limitation, all attorneys’ fees and court costs.

14.5. Interest. All late payments will bear interest at the rate of 1.5% per month (or the maximum amount allowed by law, if less), calculated daily and compounded monthly. End User must reimburse Webroot for all of its fees and costs incurred in collecting any late payments, including, without limitation, all attorneys’ fees and court costs.

15. Term. This Agreement begins on the Effective Date and continues for the Subscription Term.

15.1. No Renewal. If a Quote does not provide for automatic renewals, then End User’s subscription to the Service will expire at the end of the Subscription Term and all rights, licenses, and authorizations granted to End User under this Agreement will terminate.

15.2. Automatic Renewals. If a Quote states that End User’s subscription is subject to automatic renewals, then upon expiration of the initial Subscription Term, the subscription will automatically renew for the specified renewal Subscription Term at Webroot’s then-current pricing, in accordance with the terms and conditions pertaining to automatic renewals presented to End User at the time it received such Quote. End User may elect not to renew its subscription pursuant to the terms of such Quote, or, if such Quote is silent on the matter, by providing Webroot notice of End User’s intent not to renew at least 30 days prior to the next renewal Subscription Term. All renewals are subject to payment of the applicable Fees.

16. Termination.

16.1. Suspension and Termination. Webroot may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate, or otherwise deny End User’s access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (A) Webroot receives a judicial or other governmental demand, order, subpoena, or law enforcement request that expressly or by reasonable implication requires Webroot to do so; (B) End User refuses to accept the terms of any modified Agreement, despite receiving notice from Webroot of such modified Agreement; (C) any aspect of this Agreement is limited by law or third-party terms of service; (D) Webroot believes, in its reasonable discretion, that: (1) End User breached or failed to comply with any term of this Agreement, or accessed or used the Service beyond the scope of the rights granted to End User, or for a purpose not expressly authorized under the Subscription Documents; or (2) End User is, has been, or is likely to be involved in any fraudulent or unlawful activities, including DDOS attacks; or (E) this Agreement expires or is terminated. This Section 16.1 does not limit any of Webroot’s other rights or remedies, whether at law, in equity or under this Agreement. Failure to pay Fees when due constitutes a breach. If Webroot terminates End User’s access to or use of the Services pursuant to this Section 16.1(A) – (D), this Agreement will automatically terminate.

16.2. Effect of Expiration or Termination. On the expiration or earlier termination of this Agreement, all rights, licenses, and authorizations granted to End User will immediately terminate and End User must immediately: (A) stop using the Service; (B) delete the Software; and (C) if applicable, return the Equipment to Webroot, or, at Webroot’s option, provide access to End User’s equipment and premises for Webroot to remove such Equipment. In addition, all Fees that End User owes Webroot at termination, if any, will become due and payable to Webroot on the effective date of termination.

16.3. Survival. The following Sections survive termination: 7, the limitation of liability in 11, 12-14, 16, 19-22, and 26- 28. When this Agreement terminates or does not renew, Webroot may, at any time beginning 45 days from the date of non-renewal or termination, delete (or render anonymous) Personal Data held by Webroot.

16.4. End of Life. Webroot’s provision of the Service is subject to Webroot’s End of Life policy, which is currently available at https://www5.nohold.net/Webroot/Loginr.aspx?pid=10&login=1&app=vw&solutionid=919.

17. Limited Warranty and Disclaimer of Warranties.

17.1. Limited Service Warranty. During the Warranty Period, Webroot warrants that the Service, when used as permitted in this Agreement, will operate substantially as described in the Service Documentation. Webroot’s sole liability (and End User’s exclusive remedy) for any breach of this warranty will be, in Webroot’s sole discretion, to use commercially reasonable efforts: (A) to provide End User with an error-correction or work-around that corrects the reported non-conformity; (B) to replace the non-conforming features of the Service with conforming features; or (C) if Webroot determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund the Fees paid for the Service that are attributable to the period of non-conformance. Webroot will have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. The above warranty will not apply: (U) to any non-conformity caused in whole or in part by failure of Equipment, which will instead be governed by Section 10; (V) in any way to Third-Party Software, Open Source Software, or GeoIP Databases; (W) if the Service is not used in compliance with the terms of the Service Documentation or Subscription Documents; (X) if any modifications are made to the Service by End User or any third party, unless expressly permitted in the Service Documentation or otherwise approved in writing by Webroot; (Y) to defects due to accident, abuse, or improper use of the Service; or (Z) to the Evaluation/Beta Service.

17.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 17.1 AND SECTION 10.3, THE SERVICE, EQUIPMENT, AND SERVICE DOCUMENTATION ARE PROVIDED “AS IS” AND WEBROOT AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. IN ADDITION, THE ALGORITHMS UNDERLYING AND CONSTITUTING THE BASIS FOR CERTAIN ASPECTS OF THE SERVICE ARE FREQUENTLY BEING UPDATED AND TRAINED AND WEBROOT DOES NOT WARRANT THAT SUCH ALGORITHMS ARE CORRECT OR COMPLETE. WEBROOT DOES NOT WARRANT THAT THE SERVICE, OR ACCESS THERETO, WILL BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE, MEET END USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, NETWORKS, OR DATABASES. ALL OPEN SOURCE SOFTWARE AND OTHER THIRD-PARTY SOFTWARE ARE PROVIDED “AS IS”.

17.3. Third-Party Platforms. If End User accesses the Service via a third-party platform or app store, End User agrees that: (A) Webroot makes no representations or warranties regarding such platform or app store; (B) Webroot hereby disclaims all representations and warranties with regard to such platform or app store; and (C) as between Webroot and End User, End User is solely responsible for its compliance with the third party’s terms and conditions, and Webroot takes no responsibility or liability for any breach by End User of any of those terms and conditions.

17.4. Statutory Rights. End User may have other statutory rights. However, to the fullest extent permitted by law, the duration of statutorily required warranties, if any, will be limited to the Warranty Period above.

18. Defense of Infringement Claims.

18.1. Defense. Webroot will defend at its own expense any claim against End User brought by a third party to the extent that the claim alleges that the Service directly infringes that third party’s U.S. patents or copyrights, or misappropriates any of that third party’s trade secrets recognized as such under Uniform Trade Secrets law, and Webroot will pay those costs and damages finally awarded against End User that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such claim.

18.2. Conditions to Defense. Webroot’s obligations in Section 18.1 are conditioned on End User: (1) immediately notifying Webroot in writing of such claim after becoming aware of such claim; (2) giving Webroot sole control of the defense of the claim and any related settlement; and (3) cooperating and, at Webroot’s reasonable request and expense, assisting in the defense of such claim.

18.3. Mitigation. Upon the occurrence of a claim for which defense is due under this Section 18, or in the event that Webroot believes that such a claim is likely, Webroot may in its discretion: (1) appropriately modify the Service, or any feature or component associated with the Service, so that it or its applicable features or components become noninfringing, or substitute functionally equivalent subscription services to End User; (2) obtain a license to the applicable third-party intellectual property rights so that End User may continue to use the Service; or (3) terminate End User’s subscription to the Service on written notice to End User and refund to End User that portion of the Fees pre-paid hereunder for the infringing portion of the Service, prorated for the remainder of the applicable Subscription Term.

18.4. Limitations and Exclusions. Webroot has no obligations under this Section 18 or otherwise with respect to any infringement claim to the extent such claim is based upon: (1) any use of the Service not in accordance with the Subscription Documents and Service Documentation; (2) any use of any release of the Service other than the mostcurrent release made available to End User; (3) any modification of the Service by any person other than Webroot or its authorized agents or subcontractors; or (4) the use or combination of the Service with any third-party product or service.

18.5. SOLE REMEDY. THIS SECTION 18 SETS FORTH END USER’S SOLE REMEDY AND WEBROOT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS SUBJECT TO WEBROOT’S DEFENSE OBLIGATIONS. WEBROOT HAS NO DEFENSE OR INDEMNIFICATION OBLIGATIONS TO END USER EXCEPT AS SET FORTH IN THIS SECTION 18.

19. Limitation of Liability.

19.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL WEBROOT AND ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (B) LOSS OF GOODWILL OR REPUTATION; (C) LOSS, INTERRUPTION, OR DELAY OF THE SERVICE; (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) COST OF REPLACEMENT GOODS OR SERVICES; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER WEBROOT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

19.2. CAP. IN NO EVENT WILL THE AGGREGATE LIABILITY OF WEBROOT AND ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES UNDER THIS AGREEMENT, WHETHER ARISING UNDER OR RELATING TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE FEES PAID TO WEBROOT UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

20. US Government End Users Only. For US government end-users only, each of the Software and Service is a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and Service with only those rights set forth therein.

21. Export. The Service is subject to U.S. export control laws and regulations, and may be subject to foreign export or import laws or regulations. End User agrees to comply strictly with all such laws and regulations and not to use or transfer the Service (including any Software) for any use relating to nuclear, chemical, or biological weapons, or missile technology. End User shall indemnify and hold harmless Webroot and its licensors, directors, officers, employees, and representatives from all claims, damages, losses, and expenses (including attorneys’ fees) arising from breach of this Section 21.

22. High Risk Activity. End User acknowledges that the Service is not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, or life support or emergency medical operations or uses, and Webroot makes no warranty regarding, and will have no liability arising from, any use of the Service in connection with any high risk or strict liability activity.

23. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

24. Open Source Software and Third-Party Software. The Software may contain or be provided with components subject to the terms and conditions of third-party proprietary licenses (“Third-Party Software”) or free/libre and open source software (“Open Source Software”) licenses. An English-language list of Open Source Software distributed by Webroot may be available at https://www.webroot.com/us/en/legal/opensource. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software itself, including, without limitation, any provisions governing access to source code, modification, or reverse engineering. End User acknowledges that End User’s use of each Open Source Software component is subject to the open source license applicable to such component. Webroot makes no representations or warranties with regard to such Open Source Software and assumes no liability that may arise from the use of Open Source Software. With respect to data licensed by Webroot regarding geographic information and other data associated with an IP address (“GeoIP Databases”), End User acknowledges that the limitations and disclaimers set forth in this Agreement apply to such GeoIP Databases and that the licensor of such GeoIP Databases has no liability in connection with this Agreement or End User’s use of the Service.

25. Independent Contractors. End User’s relationship to Webroot is that of a customer, and neither party is an agent or partner of the other. End User does not and will not have, and will not represent to any third party that End User has, any authority to act on behalf of Webroot.

26. Equitable Relief. End User acknowledges that breach of one or more of its obligations under Section 7 (Conditions on Use) will cause Webroot to suffer immediate and irreparable harm for which money damages would be an inadequate remedy. Therefore, End User agrees that if it breaches one or more of its obligations under Section 7 (Conditions on Use), Webroot will be entitled to equitable relief as well as any additional relief that may be appropriate.

27. Governing Law. For any action relating to this Agreement, End User agrees to the following governing law and exclusive jurisdiction and venue, according to End User’s location.

27.1. If End User is located in the United States or Canada, this Agreement is governed by the laws of the State of Colorado without regard to its conflict of laws provisions. End User agrees to personal jurisdiction by and exclusive venue in the state and federal courts sitting in the State of Colorado, City and County of Denver, with regard to any and all claims arising out of or relating to the Service or this Agreement.

27.2. If End User is located in Japan, this Agreement is governed by the laws of Japan without regard to its conflict of laws provisions. End User agrees to personal jurisdiction by and exclusive venue in the Tokyo District Court with regard to any and all claims arising out of or relating to the Service or this Agreement.

27.3. If End User is located outside the United States, Canada, and Japan, this Agreement is governed by the laws of the Republic of Ireland without regard to its conflict of laws provisions. End User agrees to personal jurisdiction by and exclusive venue in the courts sitting in Dublin, Ireland, with regard to any and all claims arising out of or relating to the Service or this Agreement.

27.4. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

28. General. End User acknowledges that any translation of the English language version of this Agreement provided by Webroot is provided for End User’s convenience only, and that the English language version of the Agreement will take precedence over the translation in the event of any conflicts arising from translation. If any provision of this Agreement is held to be unenforceable, that provision will be enforced to the extent permissible by law and the remaining provisions will remain in full force and effect. Except as set forth in an Attachment, there are no third party beneficiaries to this Agreement. All of End User’s notices required under this Agreement must be in writing and are considered effective: (A) 1 business day after End User sends an email to: (i) the email address for Webroot as listed on a Quote; and (ii) paralegal@webroot.com, each with proof of receipt; or (B) 5 days after mailing, when sent via certified mail, return receipt requested and postage prepaid to: 385 Interlocken Crescent, Suite 800, Broomfield, Colorado 80021, Attention: Legal Department. By providing End User’s email address to Webroot or a Reseller, End User agrees to receive all required notices from Webroot electronically to that email address. Such notices are effective upon being sent to the email address. It is End User’s responsibility to notify Webroot or the applicable Reseller of any change or update End User’s email address. Notices are also effective upon publication to End User via in-product messaging or 5 days after mailing, when sent via certified mail, return receipt requested and postage prepaid to End User’s address on a Quote. End User may not assign this Agreement without the prior written consent of Webroot, which will not be unreasonably withheld; provided, however, that End User may, following notice to Webroot, assign or transfer End User’s rights or obligations hereunder to any successor to End User’s business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or otherwise. Webroot may assign this Agreement without End User’s consent, although Webroot may notify End User of any assignment. No provision of this Agreement will be deemed waived unless the wavier is in writing and signed by Webroot. This Agreement applies to End User’s connection to, evaluation of, and use of the Service but will be superseded to the extent its terms conflict with the terms of any mutually executed agreement between End User and Webroot concerning the Service.

Attachment 1 Definitions

1. Defined Terms.

1.1. “Agreement” means this Subscription Agreement for Business between End User and Webroot.

1.2. “Attachment” means one of the documents set forth as an attachment to this Agreement and “Attachments” (if applicable) means all such documents.

1.3. “Beneficiary” means a third-party organization for whom MSP provides Managed Services in accordance with Attachment 3 for such organization’s own internal business use.

1.4. “Cloud Components” means those elements of a Service that are made available to End User over the Internet.

1.5. “Console” means Webroot’s online console or portal. The Console is a Cloud Component.

1.6. “Device” means, as applicable, a personal computer, mobile device, or other device that is authorized to have the Software installed on it. The type of authorized Device may be identified in a Quote.

1.7. “End User” means the entity identified on one or more Quotes that is receiving the Service.

1.8. “Equipment” means computer hardware provided to End User solely for the purpose of allowing End User to access the Service.

1.9. “Evaluation/Beta Period” means the period of time beginning on the Effective Date and ending 30 days thereafter (or longer if set forth in a separate writing by Webroot).

1.10. “Evaluation/Beta Service” means the use of the Service as made available to End User on a trial basis. An Evaluation/Beta Service may be a new release of, or update to, an existing Service.

1.11. “Fees” means those fees and charges set forth in a Quote or otherwise communicated to End User in writing for End User’s use of the Service.

1.12. “Individual” means a natural person that is one of End User’s authorized employees or independent contractors, unless otherwise defined in Attachment 2 or as set forth in Attachment 3. An Individual may be identified in a Quote as a “User.”

1.13. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.14. “Managed Services” means the managed services provided by MSP to Beneficiaries through the authorized use of the Service.

1.15. “MSP” means a managed service provider.

1.16. “Personal Data” means any information relating to an identified or identifiable natural person that End User or its Individuals provide to Webroot as part of the Service; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.

1.17. “Quote” means any written order or quote, in electronic or paper form, provided to End User by or on behalf of Webroot (including via a Reseller), whether manually or electronically, that describes End User’s subscription to the Service and the Fees owed in connection therewith.

1.18. “Reseller” means a third party authorized by Webroot to resell or distribute the Service.

1.19. “Resultant Data” means information or data that is derived by or through the Service from processing End User’s data but is sufficiently distinct from End User’s data (including Personal Data) so that such data cannot be reverse engineered from the Resultant Data alone. Resultant Data may include anonymized, aggregated, or de-identified data.

1.20. “Service” means the service identified in one or more Quotes. Depending on the Service, the Service will consist of (A) Cloud Components; or (B) Software and Cloud Components.

1.21. “Service Documentation” means the written or electronic user documentation pertaining to use of the Service or operation of any Software, if applicable, under this Agreement.

1.22. “Software” means the applicable object-code software that must be downloaded and installed for purposes of using a Service. The term “Software” may include client software for an individual personal computer (“Desktop Software”), mobile device (“Mobile Software”), or network (“Network Software”).

1.23. “Subscription Term” means the period of time set forth on a Quote or the period of time otherwise communicated to End User in writing by or on behalf of Webroot wherein End User is licensed to access and use the Service pursuant to the terms of the Subscription Documents.

1.24. “Warranty Period” means the period of time beginning on the Effective Date and ending 30 days following the Effective Date.

1.25. “Webroot” means either Webroot Inc. (if End User is located in the United States or Canada), Webroot K.K. (if End User is located in Japan), or Webroot International Limited (if End User is located outside of the United States, Canada, and Japan).

Attachment 2 Service Specific Terms

1. Additional Terms to Agreement. If End User is using any of the following services, the provisions of this Attachment 2 apply to End User. To the extent of any conflict between the provisions of this Attachment 2 to the Agreement and the rest of the Agreement, the provisions in this Attachment 2 prevail. All defined terms in this Attachment 2 have the meanings given to them in Attachment 1 of the Agreement or in the section below in which such terms are first defined.

2. Webroot Security Awareness Training.

2.1. The Service. The Webroot Security Awareness Training Service (“WSAT Service”) allows End User to: (A) send simulated phishing emails and other content (collectively, “Content”) to Individuals in order to test those Individuals on security issues; and (B) provide online security training to Individuals to strengthen their security awareness. The only Individuals permitted to use the WSAT Service are employees of End User. If one or more of End User’s Individuals click on a simulated phishing link, End User must configure the appropriate response message to such Individuals.

2.2. Employees. End User will be required to create an administrator account within the Console, from which End User may add additional email addresses of its Individuals for End User’s simulated phishing campaign. To help ensure the foregoing, Webroot requires that End User perform a domain validation prior to using the WSAT Service, which will prove that the administrator validating the domain actually has administrator rights to that domain. Example of validation email addresses are: admin@domain.com or employee@domain.com. Only valid domains which the administrator has approval to perform training services on behalf of should be setup, used and validated. Public domains (e.g., gmail.com, yahoo.com, hotmail.com) may not be used for the WSAT Service. End User may distribute or make available Content, and offer training, to no more than the number of unique emails or seats set forth on End User’s Quote.

2.3. REQUIREMENTS OF END USER. END USER MAY SEND CONTENT ONLY: (A) FOR TRAINING PURPOSES; AND (B) TO DOMAINS OWNED BY OR UNDER THE CONTROL OF END USER. IF END USER IS AN MSP, END USER AGREES THAT EACH BENEFICIARY HAS CONSENTED TO RECEIVING CONTENT. END USER SHALL NOT USE THE WSAT SERVICE: (Y) IN ANY MANNER OR FOR ANY PURPOSE THAT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHT OR OTHER RIGHT OF ANY PERSON OR ENTITY; OR (Z) IN VIOLATION OF ANY APPLICABLE LAW, REGULATION, OR ORDER, OR IN VIOLATION OF ANY PERSON’S OR ENTITY’S RIGHTS.

2.4. Indemnification. End User shall indemnify and hold harmless Webroot and its affiliates from and against all losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses, including attorneys’ fees and costs (collectively “Losses”), suffered by Webroot or its affiliates that arise out of or relate to End User’s breach of Section 2.3 of this Attachment 2 or its selection or distribution of any Content. End User shall reimburse Webroot or its affiliates for any Losses within a reasonable period of time following notice from Webroot regarding such Losses.

2.5. No Duty to Defend. Webroot will not, and has no duty to, defend at its own expense any claim against End User brought by a third party if that claim relates to Content distributed by or made available by End User. End User acknowledges that it is solely responsible for all Content it distributes or makes available to Individuals via the WSAT Service and assumes all risk for distributing such Content. For the avoidance of doubt, Webroot’s obligations under Section 18 of the Agreement do not apply to End User’s selection or distribution of Content.

Attachment 3 Terms Applicable to MSPs

1. Additional Terms to Agreement. In order to qualify as an MSP, an End User must be in the business of providing Managed Services. If End User is using the Service as an MSP, the provisions of this Attachment 3 apply to End User. To the extent of any conflict between the provisions of this Attachment 3 to the Agreement and the rest of the Agreement, the provisions in this Attachment 3 prevail. End User is referred to as “MSP” under this Attachment 3.

2. Defined Terms. All defined terms in this Attachment 3 have the meanings given to them in Attachment 1 of the Agreement, this Section 2, or in the section in which such terms are first defined.

2.1. “Individual” means, for purposes of this Attachment 3, a natural person that is one of Beneficiaries’ employees or independent contractors.

2.2. “Personal Information” means Personal Data provided to MSP by or at the direction of a Beneficiary, or to which access was provided to MSP by or at the direction of a Beneficiary.

2.3. “Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, product names, proprietary logos, proprietary symbols, and other indicia of origin provided by a party to the other from time to time in connection with this Agreement.

3. Non-Exclusive Rights. For so long as MSP complies with Sections 6, 7, and 14 of the Agreement and Section 4 of this Attachment 3, Webroot hereby grants to MSP during the Subscription Term, in addition to the license rights set forth in the Agreement, the right to use the Service solely as a part of MSP’s provision of Managed Services to Beneficiaries for such Beneficiaries’ internal business use, including the display of the Service to potential Beneficiaries for promotional purposes.

4. Conditions on Use. In addition to the applicable conditions set forth in Sections 6, 7, and 14 of the Agreement, as a condition to MSP’s use of the Service, MSP must not: (A) knowingly permit any Beneficiaries to take any action or to refrain from taking any action that would result in a breach any of the conditions in Section 7 of the Agreement; or (B) use the Service for the provision of any services, other than the Managed Services, for the benefit of any third party. MSP is liable to Webroot for the actions of its Beneficiaries to the same extent that MSP would have been had MSP taken such actions.

5. Trademark License. Subject to the terms and conditions of this Section 5, Webroot and MSP (“Mark Licensor”) each grant to the other (“Mark Licensee”) a non-exclusive, non-transferable, non-sublicensable, revocable license to use and reproduce its Marks solely in connection with marketing the Service or the Managed Services. Neither party grants any rights in its Marks other than those expressly granted in this paragraph. Each party acknowledges the other party’s exclusive ownership of its own Marks, and each party agrees not to take any action inconsistent with such ownership. Mark Licensee agrees to cooperate, at Mark Licensor’s request and expense, in any action which Mark Licensor reasonably deems necessary or desirable to establish or preserve its exclusive rights in and to its Marks. Mark Licensee will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Mark Licensor’s Marks or in such a way as to create combination marks with Mark Licensor’s Marks. For the avoidance of doubt, MSP will not be entitled to incorporate “Webroot”, “BrightCloud”, “Webroot SecureAnywhere”, “Webroot Security Awareness Training”, “Webroot DNS Protection”, or “FlowScape” into MSP’s domain names without Webroot’s prior written approval. Mark Licensee will use Mark Licensor’s Marks only in accordance with such guidelines as Mark Licensor may provide from time to time. At Mark Licensor’s request, Mark Licensee will immediately modify or discontinue any use of the Mark Licensor’s Marks.

6. Branding. MSP will use the Marks provided to it by Webroot to identify the Service, the Managed Services, and in all materials used to market and promote the Managed Services in a manner acceptable to Webroot and subject to the limitations and requirements in this Agreement and any guidelines provided to MSP by Webroot. MSP will at all times conduct business in a manner that reflects favorably on the Service, the Managed Services, and the good name, goodwill, and reputation of Webroot.

7. Publicity. Webroot and MSP will communicate and cooperate with respect to advertising and publicity regarding this Agreement and their relationship, and each will obtain the written consent of the other before publishing or releasing any advertising or publicity, such consent not to be unreasonably withheld.

8. Compliance with Laws; Personal Information. MSP must at all times comply with all applicable laws and regulations in providing the Managed Services. MSP acknowledges that in the course of providing Managed Services, MSP may receive or have access to Personal Information. MSP must keep all Personal Information in strict confidence and comply with all applicable foreign, national, state, and local laws, regulations, and directives in MSP’s collection, receipt, access, transmission, storage, disposal, use, and disclosure (collectively, “Processing”) of such Personal Information and will be responsible for the Processing of Personal Information under MSP’s control or MSP’s possession. Without limiting the foregoing, MSP agrees that MSP and MSP’s Beneficiaries are solely responsible for ensuring that any Individual provides freely given, specific, informed and unambiguous consent to the Processing of such Individual’s Personal Information by MSP as part of the Managed Services. To that end, MSP must provide, or cause MSP’s Beneficiaries to provide, prominent and conspicuous privacy notices to all applicable Individuals that explain: (1) the precise categories of Personal Information MSP collects from Individuals as part of the Managed Services and what MSP does with such Personal Information; (2) the purposes for such collection of Personal Information; (3) whether such Personal Information will be disclosed to third parties; (4) how MSP secures and protects such Personal Information; and (5) MSP’s retention policies with respect to such Personal Information. MSP must ensure that such privacy notices do not conflict with the Privacy Statements.

9. Warranties Made By MSP. MSP will not make or publish any representations, warranties, or guarantees concerning the Service that are inconsistent with any warranties made by Webroot in this Agreement.

10. Indemnification Made By MSP. MSP will indemnify and hold harmless Webroot and its affiliates from and against all losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses, including attorneys’ fees and costs (collectively “Losses”), suffered by Webroot or its affiliates that arise out of or relate to: (1) MSP’s unauthorized Processing of Personal Information; or (2) MSP’s failure to comply with any of MSP’s obligations in Sections 8 or 9 of this Attachment 3. MSP shall reimburse Webroot or its affiliates for any Losses within a reasonable period of time following notice from Webroot regarding such Losses.

11. Indemnification Made By Mark Licensor. Mark Licensor will indemnify and hold harmless Mark Licensee from and against all Losses suffered by Mark Licensee as a result of a third-party claim against Mark Licensee alleging that Mark Licensor’s Marks infringed that third party’s United States trademark rights existing as of the Effective Date. If Mark Licensor’s Marks become, or in Mark Licensor’s opinion are likely to become, the subject of an infringement claim Mark Licensor will, at its option and expense, either: (1) procure for Mark Licensee the right to continue exercising the rights licensed to Mark Licensee in this Agreement; (2) replace or modify Mark Licensor’s Mark so that it becomes non-infringing; or (3) terminate this Agreement by written notice to Mark Licensee. THIS PARAGRAPH STATES MARK LICENSOR’S ENTIRE LIABILITY AND MARK LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR SUCH INFRINGEMENT CLAIMS AND ACTIONS.

CREDENTIAL MONITORING

CREDENTIAL MONITORING (ID AGENT) TERMS & CONDITIONS

During, and subject to the terms and conditions of, this Credential Monitoring End User Agreement (the “Agreement”): (a) ID Agent – A Delaware Limited Liability Company (“Vendor”) agrees to provide to End User certain cyber threat intelligence reporting services (“Services” – as described in Exhibit B) ordered by End User from time to time pursuant to an Order Form (as defined in Exhibit A) in connection with the Designated Resources (as described in Exhibit B); and (b) End User grants to Vendor permission to provide such Services in connection with the Designated Resources. If End User desires for Vendor to provide additional services outside the scope of the Services (such as with respect to resources other than Designated Resources, or other consulting, training, or engineering), End User shall request those additional services in writing. Vendor may decline or accept any request for additional services in its sole and absolute discretion. To the extent Vendor agrees to provide any such additional services, the scope of those services shall be set forth in a separate agreement executed by both parties and shall be subject to Vendor’s then current fees, terms and conditions for such services. This Agreement includes the Overview above, plus; (a) the General Terms and Conditions identified as Exhibit A below; (b) the Service Terms and Conditions identified as Exhibit B below; and (c) the Order Form.

EXHIBIT A –GENERAL TERMS AND CONDITION

  1. DEFINITIONS. Capitalized terms defined either in this Section 1, or in the context in which they first appear in the Agreement (including the Order Form), will have the indicated meaning throughout the Agreement and all attached documents. Unless otherwise indicated all Section references in the Agreement are to sections in these General Terms and Conditions. “Data” means any and all data, reports analyses, Hits (as defined in Exhibit B to the Agreement) or other information provided or made available to End User in connection with the Services. “Designated Resources” means those Authorized Email Assets and Authorized IP Addresses described on Exhibit B to the Agreement, subject to limitations set on the applicable Order Form. “Effective Date” means the date indicated on the Initial Order Form. “End User” means the single end user entity (such as an LLC, corporation, organization or government agency) identified on the Order Form, including internal divisions of that entity, but excluding any subsidiaries or other affiliates of the entity unless specifically identified on the Order Form. “Initial Order Form” means the initial Order Form. “Initial Term” means the initial term of this Agreement, as designated on the Order Form. “Order Form” means either the Initial Order Form, or a subsequent order form which: (a) describes Services which End User has agreed to purchase in accordance with this Agreement; (b) includes pricing for such Services; and (c) has been signed, authenticated or consented to by the End User in writing or electronically. “Services” means the cyber threat intelligence monitoring services designated on an applicable Order Form and further described in Exhibit B to the Agreement.

“Sources” means selected chat rooms and other Internet sites monitored in connection with the Services. “Updated Terms” has the meaning provided in Section 10.

2. SUBSCRIPTION TERM & TERMINATION.

2.1 Initial Term + Renewals. Unless earlier terminated in accordance with this Section 2, the term of this Agreement shall: (a) commence on the Effective Date and continue for the Initial Term; and (b) thereafter, automatically renew for successive one year periods, unless either party provides written notice of non-renewal no less than sixty (60) days prior to the end of the then-current term. The Initial Term and any and all renewals thereof are collectively referred to in this Agreement as the “term.”

2.2 Termination. Either party may terminate this Agreement in the event that the other party fails to cure a material breach within thirty (30) days after receipt of written notice thereof. In the event either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action so declared, the other party shall have the right to terminate this Agreement immediately. Except as set forth in Sections 2, 3 (solely with respect to fees and expenses arising before termination, and hourly fees and expenses described on the applicable Order Form) and 4 – 10, which shall survive termination, upon termination of this Agreement, all rights and duties of the parties under this Agreement
shall expire. Within five days after termination of this Agreement for any reason, End User shall destroy any and all documentation and other materials containing Confidential Information of Vendor. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials.

3. FEES AND PAYMENTS.


3.1 Fees. In addition to any consulting, training or other fees or expenses described on the applicable Order Form, End User shall pay to Vendor the Services fees described on the applicable Order Form. Fees designated for payment on an “Annual” basis are due and payable in advance, on the Effective Date; fees designated for payment on a “Monthly” basis are due and payable monthly, in arrears. Vendor shall endeavor to invoice End User on or prior to commencement of each renewal term, if any, and End User shall pay all fees designated for payment on an “Annual” basis within 30 days after the date of such invoices. Fees and expenses for renewal terms, if any, will automatically be set at Vendor’s then current rates for the applicable Services and other services. Fees shall be payable in immediately available funds, in U.S. dollars. Payment shall be made without any right of set-off or deduction. Fees paid are non-refundable. End User shall promptly notify Vendor in the event that any factor relevant to fees changes, such as by exceeding a number of employees relevant to a fee.

3.2 Late Payments. Any payment not made when due shall accrue late payment fees at the rate of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. Late fees shall not constitute an election of, or Vendor’s exclusive, remedy. Failure to pay fees when due shall entitle Vendor to terminate this Agreement upon notice to End User pursuant to Section 2. End User agrees to pay any and all legal fees, collection fees and other expenses incurred by Vendor to enforce this Agreement or otherwise due to End User’s failure to pay any amounts due or otherwise comply with the Agreement.

3.3 Taxes. All fees are exclusive of local, state, federal and international sales, value added, excise, withholding and other taxes and duties of any kind. End User shall be responsible for, and agrees to pay in advance (or reimburse Vendor for amounts paid), any and all taxes and duties arising out of or in connection with this Agreement, other than taxes levied or imposed based upon Vendor’s net income.

3.4 Credit Card Payments. If End User has provided Vendor with a credit card and billing information in connection with the Services, End User: (a) authorizes Vendor to automatically charge all fees incurred to any such credit card in accordance with the Agreement, including during automatic renewal periods; and (b) agrees to provide Vendor with accurate and complete billing information including full name, street address, city, state, zip code, telephone number, and a valid payment method. Should automatic billing fail, Vendor will issue an invoice or otherwise notify End User that End User must timely pay by another method acceptable to Vendor.

4. PROPRIETARY RIGHTS; FEEDBACK. All title, ownership, and intellectual property rights in and to the Services and Portal and any other materials used in connection with this Agreement and any Data created as part of this Agreement (including any changes thereto made at the suggestion of End User) and any related documentation, including any copyrights, patents, trade secrets, computer code, programs, inventions, discoveries, know-how, methods, processes, designs, algorithms, formulae, patterns, and compilations (“Proprietary Information”) are owned by Vendor and its licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to End User, any Authorized Third Party, or any other third party. Vendor reserves any and all rights not expressly granted herein. End User agrees that: (a) the content of all oral and written comments or reports provided to Vendor as feedback, including corrections, ideas and concepts, is the property of Vendor; (b) End User shall, and hereby does, assign any copyright and other such rights therein to Vendor, without any accounting or payment to End User; and (b) Vendor may use the feedback in any way that it desires in its sole discretion.

5. AUTHORITY; ACKNOWLEDGMENTS; COVENANTS.

5.1 Vendor that: (a) End User or an Authorized Third Party owns or lawfully controls, or otherwise holds a current and lawful right or license to possess, access and use, all Designated Resources provided to Vendor in connection with the Services; (b) End User has and will maintain the full right and power to enter into and perform this Agreement (including the right to provide Vendor with Designated Resources and permission to provide Services with respect to those Designated Resources) without the further consent of any Authorized Third party or any other third party; and (c) neither End User’s entry into this Agreement nor End User’s or Vendor’s performance hereunder will conflict with any right of privacy or any other obligation which End User may have to any other party (including any employee, Authorized Third Party or any other third party), whether under contract, statute, regulation, tort or otherwise.

5.2 Acknowledgment. End User acknowledges and agrees that: (a) the Services are not intended to replace any active security measures that End User or any Authorized Third Party may now or hereafter have in place, of any sort (whether physical, technical or procedural), such as filters, virus software, firewalls, surveillance or information security programs; and (b) any and all Data is intended to be merely indicative of, but does not and cannot guarantee, End User’s or any Authorized Third Party’s security posture at any given moment  in time.

5.3 Covenants. End Users covenants and agrees that: (a) Data shall be used by End User solely for End User’s or an applicable Authorized Third Party’s internal, lawful business purposes; (b) End User shall comply with all applicable federal, national, state, provincial or local laws, statutes, ordinances, rules, regulations, judgments, decrees, requirements, orders, procedures or public policy or any legislative, administrative, governmental or regulatory body, agency or other authority of any kind with respect to its performance hereunder, including the purchase and use of the Services and Data, and obtaining required written and enforceable consent from Authorized Third Parties; (c) Data shall not be resold or sublicensed, or shared with any other person or entity (except as necessary to alert law enforcement or affected Authorized Third Parties); (d) End User shall not use any Data to develop any products and/or services, or otherwise repurpose Data for any reason without the express written consent of Vendor, which consent shall be in the sole and absolute discretion of Vendor; (e) Data shall not be used as a factor in or for the purpose of establishing an individual’s eligibility for, or evaluating any individual with respect to (i) credit or insurance to be used primarily for personal, family or household purposes, (ii) employment, promotion, reassignment or retention as an employee, or (iii) any other purpose authorized under Section 604 of the Fair Credit Reporting Act; and (f) Data shall not be used as a factor in or for the purpose of improving, or providing advice or assistance with regard to improving, any individual’s credit record, credit history, or credit rating. Notwithstanding subsection 5.3(c), to the extent that the Services as described in Exhibit B expressly permit End User to request monitoring of Designated Resources that relate to an Authorized Third Party as specified in Exhibit B, End User may share applicable Data with the applicable Authorized Third Party (and no others), subject to the other limitations included in this Section 5.3. End User shall defend, indemnify and hold Vendor and its affiliates, and their respective directors, officers, employees, agents, representatives and contractors, harmless from any and all costs and expenses (including any third party claims and attorneys’ fees) arising out of, related to or resulting from (i) any actual or alleged breach of this Agreement, including violation of any representation, warranty or covenant in this Section 5, or (ii) any decision, action or omission of End User or any Authorized Third Party, including any that End User or any Authorized Third Party or other third party may make based on the Data or Services, and any use or handling of Services or Data.

6. Warranty; Disclaimers.

6.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER IN CONNECTION WITH THE SERVICES OR ANY DATA PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, ALL OF WHICH ARE PROVIDED ON AN “AS IS” BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) VENDOR DOES NOT WARRANT RESULTS OR WARRANT THAT ANY SERVICES OR DATA WILL BE FREE FROM ERRORS; AND (B) VENDOR EXPRESSLY DISCLAIMS, AND END USER EXPRESSLY WAIVES, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, SYSTEM INTEGRATION, ACCURACY OF INFORMATIONAL CONTENT, AND ACCURACY OF THE METHODOLOGY USED TO DEVELOP OR PROVIDE THE SERVICES OR ANY DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR DOES NOT WARRANT RESULTS OR WARRANT THAT ANY SERVICES OR DATA WILL BE FREE FROM ERRORS, DEFECTS OR BUGS, OR THAT SUCH WILL NOT INTERFERE WITH OR DISRUPT ANY OF THE DESIGNATED RESOURCES OR ANY OTHER END USER
SECURITY SYSTEM, NETWORK, SOFTWARE OR SYSTEM. END USER ACKNOWLEDGES THAT THE SERVICES ARE INTENDED TO SUPPLEMENT, NOT TO REPLACE OR ACT AS A SUBSTITUTE FOR, A COMPREHENSIVE DATA SECURITY PROGRAM, AND THAT VENDOR DOES NOT AND CANNOT GUARANTEE END USER’S OR ANY AUTHORIZED THIRD PARTY’S SECURITY POSTURE AT ANY GIVEN MOMENT IN TIME.

6.2 VENDOR DOES NOT ASSEMBLE, EVALUATE OR MAKE THE SERVICES OR ANY DATA AVAILABLE FOR USE AS A FACTOR IN OR FOR THE PURPOSE OF:(A) ESTABLISHING ANY INDIVIDUAL’S ELIGIBILITY FOR, OR EVALUATING ANY INDIVIDUAL WITH RESPECT TO (I) CREDIT OR INSURANCE TO BE USED PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, (II) EMPLOYMENT, PROMOTION, REASSIGNMENT OR RETENTION AS AN EMPLOYEE, OR (II) ANY OTHER PURPOSE AUTHORIZED UNDER SECTION 604 OF THE FAIR CREDIT REPORTING ACT; OR (B) IMPROVING, OR PROVIDING ADVICE OR ASSISTANCE WITH REGARD TO IMPROVING, ANY INDIVIDUAL’S CREDIT RECORD, CREDIT HISTORY, OR CREDIT RATING.

7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY END USER TO VENDOR PURSUANT TO AN APPLICABLE ORDER FORM IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; AND (B) NEITHER VENDOR NOR ANY OF ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS EMPLOYEES, LICENSORS, CONTRACTORS, SUPPLIERS, AGENTS OR REPRESENTATIVES, SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING ANY LOST PROFIT, LOST DATA OR LOST SAVINGS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM BY END USER OR FOR ANY THIRD PARTY CLAIM. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT VENDOR WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.

8. CONFIDENTIALITY.

8.1 Generally. “Confidential Information” is any information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the Services, and clearly marked as confidential or identified in writing to the Receiving Party as confidential at the time of disclosure. Notwithstanding the foregoing, should any Sources be disclosed to End User either verbally or in writing, End User agrees that Sources shall constitute the Confidential Information of Vendor, regardless of whether those Sources are marked as confidential. Nothing in this Agreement shall be interpreted to compel Vendor to disclose any or all of the Sources.

8.2 Obligations. Each Receiving Party will: (a) treat as confidential all Confidential Information of the Disclosing Party; (b) not use such Confidential Information except as expressly set forth in this Agreement or otherwise authorized in writing; (c) implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the Disclosing Party’s Confidential Information; and (d) not disclose such Confidential Information to any third party, (i) except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein, or (ii) except as may be permitted by Section 5.3 in connection with a third party(ies) specified in Exhibit B. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party, but in no event less than reasonable care. Except as expressly authorized in this Agreement, neither party will copy Confidential Information of the other party without the discloser’s prior written consent. Notwithstanding anything to the contrary in this Agreement, whether or not marked as confidential, the financial terms of this Agreement and the Portal shall be deemed Confidential Information of Vendor.

8.3 Exclusions. Confidential Information will not include, or will cease to include, as applicable, Confidential Information that the Receiving Party can document: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (f) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such
disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Vendor may use End User’s name and logo in Vendor public End User listings and marketing materials, and issue press releases referencing End User’s name.

8.4 Ownership; Destruction of Data. All Confidential Information shall: (a) remain the property of the Disclosing Party; and (b) shall be destroyed by the Receiving Party within two weeks upon written request (except for Data delivered prior to termination, which End User may continue to use within the scope of Section 5.3).

9. NON-SOLICITATION. End User agrees that it shall not, at any time during the term and for a period of 18 months after termination of this Agreement, whether for its own account or for the account of others, solicit for employment, hire or otherwise engage any of the employees or independent contractors of Vendor. Notwithstanding the foregoing, nothing in this Agreement shall prevent End User from hiring any person who responds to a general solicitation not personally directed to such person. In the event End User hires or engages an employee or contractor of Vendor in violation of this Section 9, Vendor shall be entitled to collect liquidated damages from End User to compensate Vendor for locating, recruiting, hiring and training a replacement person. Vendor’s liquidated damages shall be a sum equal to two times the gross annual compensation of the person End User wrongfully hired or engaged. Gross annual compensation means twelve times the subject employee or contractor’s last full month’s compensation from Vendor including bonuses and benefits. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty

10. MISCELLANEOUS

10.1 Interpretation. The headings used in this Agreement are for convenience only and shall in no case be considered in construing this Agreement. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. Any use of the term “include” or “includes” or “including” shall mean “include without limitation,” “includes without limitation” and “including without limitation,” respectively.

10.2 Assignment. Subject to the following, all of the terms and conditions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and any permitted assigns of the parties. End User shall not assign this Agreement or any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of Vendor. Any attempt by End User to assign this Agreement without Vendor’s prior written consent shall be null and void. There are no intended third party beneficiaries of this Agreement.

10.3 No Waiver; Limitations. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by End User more than one (1) year after the cause of action has accrued.

10.4 Governing Law. This Agreement shall be governed in all respects (without regard to any conflict of laws provisions) by the laws of the United States of America and the State of Maryland as such laws are applied to agreements entered into and to be performed entirely within the State of Maryland between residents of Maryland.

10.5 Dispute Resolution. Any claim, whether based on contract, tort or other legal theory (including any claim of fraud or misrepresentation), arising out of or relating to this Agreement, including the interpretation, performance, breach or termination thereof, shall be exclusively and finally resolved by arbitration. The arbitration shall be conducted by a single arbitrator, and every person named on all lists of potential arbitrators, shall be a neutral and impartial lawyer with excellent academic and professional credentials (i) who has practiced law for at least ten (10) years, with experience in the field of software development and distribution and intellectual property law, and (ii) who has had experience, and is generally available to serve, as an arbitrator. The arbitrator shall be bound by the provisions of this Agreement and base the decision on applicable law and judicial precedent, shall include in such decision the findings of fact and conclusions of law upon which the decision is based, and shall not grant any remedy or relief that a court could not grant under applicable law. The arbitrator’s decision shall be final and binding upon the parties, and shall not be subject to appeal. Notwithstanding the foregoing, either party may enforce any judgment rendered by the arbitrator in any court of competent jurisdiction. In addition, the arbitrator shall have the right to issue equitable relief, including preliminary injunctive relief. Any such arbitration shall be conducted in Baltimore County, Maryland, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association. For the purposes of any arbitration or court action between the parties relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs.

10.6 Changes in Laws. Notwithstanding anything to the contrary in this Agreement, Vendor may limit or discontinue the provision of the Services to the extent: (i) Vendor or any vendor of Vendor is restricted by any rule, regulation, law or governmental entity; (ii) Vendor or any vendor of Vendor has discontinued the collection of data; or (iii) Vendor or any vendor of Vendor is prohibited from providing Services. In addition, Vendor may discontinue, upgrade or change the production, support, delivery and maintenance of any Services if Vendor develops an upgraded version or otherwise no longer generally provides such Services to its End Users. In the event that Vendor materially modifies the content or scope of the Services provided to End User, the Parties shall renegotiate the fees in good faith according to the prevailing pricing models.

10.7 Consent and Notices. Unless otherwise expressly indicated, any consent or authorization required under this Agreement shall be at the sole discretion of the party from whom such consent is required. Notice shall be deemed to have been received by a party, and shall be effective on the day received. All breach-related notices permitted or required under this Agreement shall be in writing and shall be delivered by recognized postal or courier services who provide delivery confirmation to the other party’s address set forth on the Initial Order Form, or such other address as the parties may subsequently provide in writing. All other notices may be sent by email with notice deemed given upon acknowledgement of receipt by a reply email.

10.8 Independent Contractors. The parties enter into this Agreement as, and shall remain, independent contractors with respect to one another. Nothing in this Agreement shall create a partnership, joint venture, agency, franchise, or employment relationship between the parties.

10.9 Force Majeure. Vendor shall not be liable to End User by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of End User, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, cybersecurity incidents, or any other causes beyond the reasonable control of Vendor.

10.10 Entire Agreement. This Agreement, together with its Exhibits and Order Forms, comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior and contemporaneous proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Vendor reserves the right, in its sole discretion, to change the General Terms and Conditions and/or the Services Terms and Conditions (“Updated Terms”) from time to time. Unless Vendor makes a change for legal or administrative reasons, Vendor will provide reasonable advance notice before the Updated Terms become effective. End User agrees that Vendor may notify End User of the Updated Terms by posting them on the Portal, and that End User’s use of the Service (including the Portal) after the effective date of the Updated Terms (or engaging in such other conduct as Vendor may reasonably specify) constitutes End User’s agreement to the Updated Terms. End User should review these Terms and Conditions and any Updated Terms before using the Services. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to End User’s use of the Services from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms. Except as otherwise expressly provided in this Section, this Agreement may be amended or modified only in a writing executed by both parties. All End User documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Agreement unless this provision is separately and specifically referred to and waived by Vendor in a signed writing.

10.11 Forms of Consent. This Agreement and any amendments thereto may be executed in counterparts. The parties consent to the conduct of transactions and the execution of any amendments between them by electronic means or records, including by use of electronic signatures and facsimile copies of a party’s signature.

EXHIBIT B –SERVICE TERMS AND CONDITIONS

B.1 Scope. During the term of, and subject to the terms and conditions of, this Agreement (including the Order Form and this Exhibit B), Vendor will use proprietary technologies to provide End User Monitoring Services. “Administrator User” means a designated employee of End User who has been provided with: (a) access to all relevant Data on the Portal, including captured password data for Authorized Email Assets; and (b) the ability to configure the Portal within specifications.

“Authorized Email Asset” means any email domain name (such as “@EndUserName.com” or “@EndUserBrand.org”) or email address (such as JohnDoe@EndUserName.com or “JohnDoe@ISP.com”) that is: (a) unique to End User or an Authorized Third Party; and (b) owned or controlled by End User or an Authorized Third Party, as designated by End User from time to time in accordance with Vendor’s then-current process.


“Authorized IP Address” means any IP address for a system, network or device which End User or an Authorized Third Party owns, or to which End User or an Authorized Third Party has authorized access, as designated by End User from time to time in accordance with Vendor’s then-current process.

“Authorized Third Party” means: (a) any employee, contractor, Supplier or agent of End User, on whose behalf End User has obtained prior written permission, in compliance with applicable laws and this Agreement, to provide Vendor with Designated Resources for the purpose of enabling Vendor to provide Services and Data to the End User with respect to those Designated Resources, without the further consent of the applicable employee, contractor, Supplier or agent or any other third party; (b) any
Customer, or any employee, contractor, Supplier or agent of Customer, on whose behalf End User or such Customer has obtained prior written permission, in compliance with applicable laws and this Agreement, to provide Vendor with Designated Resources for the purpose of enabling Vendor to provide Services and Data to the End User with respect to those Designated Resources, without the further consent of the applicable Customer, employee, contractor, Supplier or agent or any other third party; and (c) any Prospect.

“Customer” means any current client or customer of End User with which End User has a current written agreement that protects the confidentiality, and limits the use, of the Services and Data in a manner consistent with, and no less protective than, this Agreement.

“Customer Prospect” means any bona fide and current prospective Customer of End User which has expressed a current interest in viewing masked password Data concerning such prospective customer, but which is not yet a Customer bound by a written contract with End User in accordance with the Agreement. “Data” means any and all relevant data made available to End User on the Portal, including Hits and reports.

“End User Monitoring Service” means Monitoring Services with respect to the Designated Resources.

“Monitoring Services” means: (a) monitoring Sources in an effort to identify apparent references to Designated Resources (each, a “Hit”) which suggest that one or more individuals, organizations or communities are targeting Designated Resources and could pose a risk of disseminating or using End User’s sensitive and confidential information (or those of an Authorized Third Party) without authorization; and (b) making available to the Administrator User(s) and any Standard Users, in encrypted format on the Portal a daily report (delivered within a batched cycle at least once during any 24-hour time period) showing such Hits and such other information as appropriate for the applicable Service, User level and monitored entity. End User acknowledges that an ideal outcome for End User or an Authorized Third Party would be a series of reports showing no reported Hits.

“Portal” means Vendor’s proprietary credential monitoring platform.

“Prospect” means any Customer Prospect or Supplier Prospect.

“Standard User” means a designated employee of End User who has been provided with access to all Data on the Portal, excluding captured password data for Authorized Email Assets.

“Supplier” means any current contractor, vendor, business partner, agent or affiliated agency of End User with which End User has a current written agreement that protects the confidentiality, and limits the use, of the Services and Data in a manner consistent with, and no less protective than, this Agreement.

“Supplier Prospect” means any bona fide and current prospective Supplier in which End User has expressed a current interest in viewing masked password Data concerning such prospective customer, but which is not yet a Supplier bound by a written contract with End User in accordance with the Agreement.

“User” means an Administrator User or a Standard User.

B.2 Limitations. Data shall constitute Confidential Information of Vendor, and may be used by End User solely for internal purposes, its support of an Authorized Third Party, or for alerting law enforcement or affected Authorized Third Parties; the Data cannot be resold, sublicensed, copied or used by End User or any Authorized Third Party in any other manner without the express written consent of Vendor, which consent shall be in Vendor’s sole and absolute discretion. Only Users shall be provided with personal access to the Portal, subject to password and two-factor authentication requirements. Without limiting the generality of any of the other conditions or restrictions set forth in this Agreement, neither End User nor any User may directly or indirectly: (a) permit third party access, or take actions which result in access, or attempts to access, the Portal from more than one computer at any one time per User; (b) distribute or share any user name or password with anyone; or (c) lease, license or otherwise charge others for use or access to the Portal. Vendor may use automated procedures and other means to detect violations of this Agreement, and may immediately disable and/or terminate offending End Users. Vendor is not responsible for interruptions that may result from any such disabling or termination. Access to the Portal is subject to Vendor’s then-current Acceptable Use Policy.

End User may use the Portal solely as expressly permitted in this Agreement. Without limiting the generality of the foregoing limitation, End User will not (and will not allow others to: (a) copy or modify the Portal; (b) reverse engineer, decompile, disassemble, derive the source code of, create derivative works from or otherwise exploit the Portal (except to the extent that such restriction is expressly prohibited by applicable law); (c) lease, license, use, make available or distribute all or any part of the Portal to any third party; (d) distribute, sell, rent, lend, pledge, lease, sublicense, or otherwise, directly or indirectly, transfer rights or charge others for use of or access to the Portal; (e) use the Portal to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; or (f) remove, modify or obscure any copyright, trademark or other proprietary rights notices which appear in or on the Portal or any report or other output generated thereby. End User is solely responsible for all equipment and other resources necessary to connect and communicated with the Portal, and to receive two-factor authentication codes sent via text message or LAN phone call.

To the extent any Authorized Third Party revokes, withdraws or otherwise terminates its consent to permit End User to provide Vendor with Designated Resources for the purpose of enabling Vendor to provide Services and Data to the End User with respect to Designated Resources, End User shall immediately: (a) provide Vendor with written notice thereof; and (b) remove all relevant Designated Resources from the Portal. Notwithstanding any other provision of this Agreement, End User agrees that: (a) End User shall differentiate between Prospects and other Authorized Third Parties when using the Portal or otherwise requesting Services; and (b) all Data made available to End User in connection with an Authorized Third Party which is merely a Prospect and not a Customer or Supplier shall be partially masked until such time as such Prospect becomes a Customer or Supplier by entering into a written agreement with the End User that protects the confidentiality, and limits the use, of the Services and Data in a manner consistent with, and no less protective than, this Agreement.

B.3. Service Level Agreement.
“Delivery Availability (or Delivered)” means a file, if available, containing the Data is made available to End User at least once during any 24-hour time period (e.g., on a daily basis) via Vendor’s batch delivery method.

“Emergency Maintenance” means maintenance that is performed by or on behalf of Vendor or a service provider to Vendor on or in connection with the Portal or Services due to an issue that is outside of the Maintenance Window and is a result of conditions or events beyond Vendor’s reasonable control.

“Maintenance Windows” means hours during which Vendor shall perform Scheduled Maintenance on the Portal, i.e., 12:00 a.m. – 11:00 a.m. ET.

“Permitted Downtime” means the following: (a) lack of Availability due to any Scheduled Maintenance or any Emergency Maintenance; (b) lack of Availability due to any Force Majeure Event, as defined in the Agreement; or (c) lack of Availability due to, or caused by, End User’s software, systems or environment or any other reason beyond the reasonable control of Vendor.

“Scheduled Maintenance” means maintenance on the Portal so long as (i) such maintenance is performed by Vendor during a Maintenance Window, or (ii) Vendor has provided notice using email (or other) method to End User not less than four (4) hours before the commencement of such maintenance, which notice specifies the nature of such maintenance and the anticipated impact of such maintenance upon availability and performance of the Portal. Service Availability + Credits – Except in the event of Emergency Maintenance or Permitted Downtime, available Data (if any) will be delivered at least once during any 24 hour time period. End User will notify Vendor in writing of any non-compliance with the service
levels set forth in this Section B.3. If Vendor fails to meet the required Delivery Availability more than twice during any month (i.e., Data is available and is not delivered to End User for three or more days during the subject month) and after Vendor has received the required written notice thereof, then End User, as End Users’ sole and exclusive monetary remedy for breach of this Section B.3, will be entitled to receive one (1) full day’s credit on Fees for that particular month (a “Service Credit”), which will be computed based on then current Fees paid for the Services divided by the applicable number of days in such month. Any Service Credit provided by Vendor shall be applied to End User’s next invoice (or refunded if Vendor does not expect to issue any further invoices).

In order to receive the Service Credit, End User must notify Vendor in writing within 30 days from the time End User becomes eligible to receive a Service Credit. Failure to comply with this requirement will result in a forfeiture of the right to receive the Service Credit.

Service Credits shall constitute End User’s exclusive monetary remedy for Vendor’s failure to meet any minimum Delivery Availability commitments under this SLA; provided, however, that in the event of Vendor’s uncured failure to meet Delivery Availability for two or more consecutive months, End User shall also have the right to terminate the Agreement by providing Vendor with written notice of such termination.

Incident Resolution

On a 24×7 basis, 365 days per year basis, End User may provide notice of any Delivery Availability or other support issue by sending an email to their account manager or to support@DarkWebID.com. Vendor will use its commercially reasonable efforts to resolve any
reported and verifiable issues.

Revision Date: September 2017