GENERAL TERMS OF BUSINESS

1. GENERAL

These Terms apply to all Contracts entered into by Knibbs Computer Services

2. DEFINITIONS

2.1. In these Terms the following words have following meanings:

Active Devices: Products containing electronic components

Contract: any contract for the supply and/or installation of Products by Knibbs Computer Services to the Customer

Customer: any Customer of Knibbs Computer Services to whom Products are supplied under the Contract incorporating these terms

Knibbs Computer Services: Knibbs Computer Services Limited (Company Number: 3651449) whose registered office is at  Kingfisher House, Hurstwood Lane, Haywards Heath, West Sussex RH17 7QX

Products: any products, including Active Devices to be supplied by Knibbs Computer Services under the Contract (including any part or parts of them)

Quotation: any offer by Knibbs Computer Services for the supply and/or installation of Products

Specification: the specification of the Products set out in the Quotation or otherwise agreed in writing

Terms: the terms set out in this document and any additional terms relating to specific services or as agreed in writing by Knibbs Computer Services and the Customer

Third Party Software: all software owned by or licensed to the Customer by third parties and which comprised part or all of the Products

2.1 In these Terms headings will not effect the construction of these Terms.

3.   ACCEPTANCE

3.1. These Terms apply to all Contracts to the exclusion of all other terms.  Any variation is only effective if agreed in writing by a Director of Knibbs Computer Services.  No other employee, representative or agent has authority to vary, alter or amend the Terms. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Knibbs Computer Services which is not set out in the Contract. Nothing in these Terms will exclude or limit the Company’s liability for fraudulent misrepresentation.

3.2. No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, Specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.

3.3. The Customer must ensure that the terms of its order and any Specification are complete and accurate.

3.4. Any Quotation accepted by the Customer or Customers order accepted by Knibbs Computer Services shall be subject to these Terms and any credit checks which Knibbs Computer Services may undertake.

3.5. Knibbs Computer Services shall be entitled to cancel the Contract at any time without liability, if either the Customer fails to supply upon request trade and/or bank references or if such references supplied or credit checks undertaken are unacceptable to Knibbs Computer Services.

3.6. Quotations are only valid for the period stated in them or in default of any period, 1 days from their date, provided Knibbs Computer Services has not previously withdrawn it.

3.7. Purchase terms of our customers apply only to the extent that they do not contradict our terms of payment and delivery.

4. PRICE

4.1. The Price to be stated in the Quotation, may be increased by Knibbs Computer Services before delivery of the Products if there is any variation in the cost of materials, labour or other overheads (including any variations in foreign exchange rates) or if any change in the Specification is required.  The Customer will be advised of any such increase in Price.

4.2. The Price shall be exclusive an any value added tax and any other taxes, government charges or customs duties shall be added to the Price.

4.3. The Price includes the cost of installation and delivery in accordance with the Quotation.  Knibbs Computer Services shall be entitled to charge extra for any additional works required and not provided for within the Quotation.

5.    PAYMENT

5.1. Sale of Hardware/Software/Services:

5.1.1. Save where the Price exceeds £3,000 payment of the Price shall be made to Knibbs Computer Services in the quoted currency not later than 30 days following the invoice date unless otherwise agreed.

5.1.2. Where the Price exceeds £3,000, 40% of the price shall be payable with the order, with the balance due in the quoted currency not later than 30 days following the invoice date unless otherwise agreed.

5.2.  Time for payment shall be of the essence.

5.3.  No payment shall be deemed to been received unless Knibbs Computer Services has received cleared funds.

5.4.  All payments payable to Knibbs Computer Services under this Contract shall become due immediately upon termination of this Contract despite any other provision.

5.5.  The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Knibbs Computer Services to the Customer.

5.6.  Any discount is subject to payment in full within these payment terms and in default, Knibbs Computer Services reserves the right to raise an invoice for the discount.

5.7.  In default of payment in full on the due date Knibbs Computer Services shall have the right to charge interest from the due date to the date of payment at the rate of 8% above the Bank of England Base Rate accruing on daily basis on the amount outstanding.

5.9   If the Contract provides for the payment of the Price by instalments and the Customer defaults on any instalment, the whole Price outstanding shall become immediately due and payable and interest shall run on the outstanding Price at the rate set out in Clause 5.8 above from the date of default. Knibbs Computer Services may suspend any further deliveries of the Products until payment of the Price by the Customer.  The Customer shall indemnify Knibbs Computer Services against any losses or expenditure suffered by Knibbs Computer Services as a result of such suspension (including storage charges).

5.10 Upon the occurrence of an event of force majeure (as detailed in Clause 8.2 below)  Knibbs Computer Services shall be entitled to invoice for the proportion of work completed and for Products delivered on to site.

5.11 In case payments are late for more than one payment obligation, all claims against the purchaser shall fall due immediately.

6. RISK AND PROPERTY

6.1. The risk in the Products shall pass to the Customer upon delivery but title in the Products supplied shall remain in Knibbs Computer Services until the Customer has paid all amounts outstanding to Knibbs Computer Services under any account whatsoever.  Until Knibbs Computer Services is paid in full for the Products the relationship of the Customer to Knibbs Computer Services shall be fiduciary in respect of the Products and the Customer shall keep the Products separate from those of the Customer or third parties and properly stored, protected and insured and identified as Knibbs Computer Services’ property, but the Customer shall be entitled to resell or use the Products in the ordinary course of trade.

6.2. The Customer shall be entitled to resell the Products in the ordinary course of trade prior to the passing of title provided that before agreeing to resell such Products the Customer shall supply a copy of these Terms to the intended buyers.

6.3. The Products shall remain as chattels and severable from any land, buildings or other products of the Customer to which they may become attached.

6.4. In the event of a breach of these Terms by the Customer or upon the Customers insolvency prior to title passing, the Customer shall immediately return all the Products to Knibbs Computer Services and in default, Knibbs Computer Services shall have the irrevocable right to enter upon the Customers premises or other premises where the Products are located with transport and recover the Products.

6.5. The purchaser shall be authorized to process and re-sell the goods in the context of his ordinary course of business. In this event, the purchaser hereby as-signs (with regard to the goods still owned by the seller for lack of payment) the receivables or rights resulting therefrom to the seller.

7. DELIVERY AND INSTALLATION

7.1. Time is not of the essence of the Contract but Knibbs Computer Services shall use reasonable endeavours to deliver and install in accordance with the Quotation.  Time or dates given for delivery and installation are estimates only.  Knibbs Computer Services shall not be liable for the consequences of any delay.

7.2. Delivery and installation may be by instalments whereupon each delivery and installation shall constitute a separate contract and failure to deliver any instalment shall not be grounds for cancellation of the Contract nor refusal to pay the Price.

7.3.  If for any reason the Customer will not accept delivery or installation of any of any Goods when they are ready for delivery and installation, or the Company is unable to deliver or install the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

7.3.1. risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);

7.3.2. the Goods will be deemed to have been delivered; and

7.3.3. the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).

7.4. Any dates specified by Knibbs Computer Services for delivery and installation are intended to be an estimate.  Failure to accept delivery shall not excuse payment of the Price.  The Customer shall indemnify Knibbs Computer Services against all expenses arising from such non-delivery.

7.5. The Customer shall ensure that such facilities as Knibbs Computer Services shall reasonably require for access and installation are available and in default shall indemnify Knibbs Computer Services for any additional expenses incurred.

7.6. The installation of the Products shall not be complete until such time as Knibbs Computer Services has notified to the Customer in writing.

7.7. The Customer shall indemnify Knibbs Computer Services against any liability suffered for breach by the Customer of any duty imposed upon it under any relevant Health and Safety legislation in respect of any of Knibbs Computer Services’ employees or agents.

8. FORCE MAJEURE

8.1. Knibbs Computer Services shall not be liable for any failure to perform any part of the Contract if its performance has been delayed hindered or prevented by any circumstances whatsoever which are not within the control of Knibbs Computer Services including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials and are not preventable by reasonable diligence on its part.

8.2. If Knibbs Computer Services is at any time delayed hindered or prevented from performing the Contract in whole or in part by such an event detailed in Clause 8.1 above then Knibbs Computer Services shall be at liberty to withhold, suspend or reduce performance to such extent as is reasonable in all the circumstances.  The Customer shall thereupon be liable for a rateable proportion of the Price agreed to be paid.

9.  SPECIFICATION

9.1. Knibbs Computer Services shall be entitled without notice to change the Specification provided that any variations in quality do not materially affect the general commercial use of the Products.

9.2. If the Customer instructs Knibbs Computer Services to vary the Specification the Customer will be responsible for any reasonable increase in Price due to such alteration.

10. WARRANTIES AND LIABILITY

10.1. Subject to the conditions set out below, Knibbs Computer Services warrants that the Products will correspond with their Specification at the time of delivery and shall be free from defects in material and workmanship save for Active Devices for a period of 1 year from the date of their initial use or   years from the delivery, whichever is the first to expire and in relation to Active Devices one year from the date of their initial use or one year from delivery, whichever is the first to expire.

10.2. The above warranty is given by Knibbs Computer Services subject to the following condition:-

10.2.1. Knibbs Computer Services shall be under no liability in respect of any defect in the products arising from any drawing, design or specification supplied by the Customer;

10.2.2. Knibbs Computer Services shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Knibbs Computer Services’ instructions (whether oral or in writing) misuse or alteration or repair of the Products without Knibbs Computer Services’ prior written approval;

10.2.3. Knibbs Computer Services shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total Price for the Products has not been paid by the due date for payment;

10.2.4. the above warranty does not extend to parts, materials or equipment not manufactured by Knibbs Computer Services, in respect of the which the Seller shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer of the parts materials or equipment to Knibbs Computer Services;

10.2.5. the above warranty does not include the cost of labour, collection or delivery of the Products to or from the Customer for which Knibbs Computer Services shall be entitled to charge.

10.3.  Save as expressly provided in these conditions and except where the Products are sold to a person dealing as a consumer (within the meaning of either the Unfair Terms in Consumer Contract Regulations 1994 or the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by Statute or Common Law are excluded from the Contract to the fullest extent permitted by Law.

10.4.  Any claim by the Customer which is based on any defect in the quantity or condition of the Products or their failure to correspondence with their Specification shall (whether or not delivery is refused by the Customer) be notified to Knibbs Computer Services within seven days from the date of delivery (or where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.  If delivery is not refused, and the Customer does not notify Knibbs Computer Services accordingly, the Customer shall not be entitled to reject the Products and that Knibbs Computer Services shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Products had been delivered in accordance with the Contract.

10.5.  Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet the Specification is notified to Knibbs Computer Services in accordance with these conditions, Knibbs Computer Services shall be entitled to replace the Products (or the part in question) free of charge or, at Knibbs Computer Services’ sole discretion, refund to the Customer the price of the Products (or a proportionate part of the price), but Knibbs Computer Services shall have no further liability to the Customer.

10.6 . Nothing in these Conditions excludes or limits the liability of Knibbs Computer Services:

10.6.1. for death or personal injury caused by Knibbs Computer Services’ negligence;

10.6.2. under section 2(3) Consumer Protection Act 1987;

10.6.3. for any matter which it would be illegal for the company to exclude or attempt to exclude its liability; or

10.6.4. for fraud or fraudulent misrepresentation.

10.7. Knibbs Computer Services shall not be liable to the Customer by reason of any misrepresentation (unless fraudulent), or any implied warranty, condition or other term or any duty at Common Law, or under the express terms of the Contract for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs expenses or other claims for compensation whatsoever (whether caused by the negligence of Knibbs Computer Services, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Customer, and the entire liability of Knibbs Computer Services under or in connection with the Contract shall not exceed the Price, except as expressly provided in these Terms.

11. BREACH

If the Customer commits any breach of these Terms and/or the Contract or being a Company has a resolution or petition for its winding up passed or presented, or a Receiver or Manager is appointed or, if a natural person, commits any act of bankruptcy or enters into any composition with creditors, or is subject to an interim order within the Insolvency Act 1986 or suffers any execution to be levied upon its products, or is unable to pay its debts as per the Insolvency Act 1986 or fails to take delivery of the Products or is in breach of the terms of any contract with Knibbs Computer Services (including these Terms), Knibbs Computer Services shall be entitled to terminate the Contract or suspend its performance and all sums in respect of Products delivered to the Customer shall become immediately payable.

12. SUB-CONTRACTING AND ASSIGNMENT

12.1. Knibbs Computer Services may assign or sub-contract the whole or any part of its rights and obligations under the Contract.

12.2. We are entitled to assign the claims arising from our business relationship.

13. THE CUSTOMER’S RIGHTS

For the avoidance of doubt, it is hereby declared that these Terms are to be read in conjunction with the provisions of the Unfair Contract Terms Act 1977, the Sale of Goods Act 1979 and the Sale and Supply of Goods Act 1994 or the Unfair Terms in Consumer Contract Regulations 1994 or any statutory modifications thereof.  Nothing in these Terms shall affect a consumer’s statutory rights.

14. DATA PROTECTION

14.1. Knibbs Computer Services agrees that it will in relation to personal data processed in connection with this Contract (“the Customer Data”):-

14.1.1. process the Customer data in accordance with the Data Protection Act 1998 (“the 1998 Act”) and any other applicable data protection legislation;

14.1.2. process the Customer Data only so far as is necessary for the purpose of performing its obligations under this Contract;

14.1.3. not disclose Customer Data or allow access to it other than by employees and/or third party engaged by the Contract to perform the obligation imposed on Knibbs Computer Services by this agreement and to ensure that such employees and/or third parties are subject to written contractual obligations concerning the Customer Data which are no less onerous than those imposed on the Customer.

14.2. Knibbs Computer Services reserves the right to record telephone calls and remote control sessions for training and quality purposes.

15. PROPRIETARY RIGHTS

15.1. The Products are sold subject to the rights of any person whether in respect of any patent, trademark, registered design, copyright, confidential disclosure or otherwise to prevent or restrict sale or use of the Products in any part of the world and the Customer will in this respect accept such title to the Products Knibbs Computer Services may have.

15.2. The Customer hereby acknowledges their sole responsibility to comply with all terms and conditions of any license attaching to Third Party Software supplied and delivered by Knibbs Computer Services. The Customer hereby acknowledges that failure to comply with such terms and conditions may result in the Customer being refused a software license or having the same revoked by the proprietary owner. The Customer hereby further agrees to indemnify Knibbs Computer Services in respect of all costs, charges or expenses incurred by Knibbs Computer Services as a result of any breach by the Customer of such conditions.

16. GENERAL

16.1. Each right or remedy of Knibbs Computer Services under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

16.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

16.3 . The Parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any party that is not a party to it.

16.4. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

16.5. The Contract and the documents referred to in it constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject mater of this Contract

16.6. Any waiver by Knibbs Computer Services of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

16.7. These Terms shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.

DATTO PRODUCTS TERMS AND CONDITIONS

The following conditions govern the provision of Datto Managed Devices by Knibbs as a reseller of Datto Inc. By signing our quotation or contract for Datto Managed Products you herby accept the following terms and conditions.

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.

 

USE OF PRODUCTS

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.

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.

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.

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.

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.

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.

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.

LIMITATIONS ON RIGHTS OF USE

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.

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.

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.

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.

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.

RIGHTS AND RESPONSIBILITIES REGARDING CONTENT

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.

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.

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.

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).

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.

MAINTENANCE,  SUPPORT AND TRAINING

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.

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.

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.

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.

TERM AND TERMINATION

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.

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.

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.

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).

ACCESS AND SECURITY

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.

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.

UPDATES AND TESTING

Right to Change Products. We reserve the right at any time, in our sole discretion, to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to any and all Specifications for the Products.  We will use reasonable commercial efforts to provide you notice of any material changes.

Remote Testing and Updates. You agree that we may and hereby authorize us, at any time and from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product.

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.

USE OF  INFORMATION

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.

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.

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.

CONFIDENTIALITY

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.

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.

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.

Permitted Disclosures. Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors and independent contractors (collectively “Representatives”) who have a need to know such Confidential Information in order to perform their duties provided they have a legal duty to protect the Confidential Information. A party receiving Confidential Information of the other party assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.

Required Disclosures. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.

Injunctive Relief. Each party acknowledges that any breach of any provision of this Section 9 (Confidentiality) by the receiving party, or its Representatives, may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.

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.

WARRANTY AND DISCLAIMER

Limited Datto Hardware Warranty.  Warranty terms for physical hardware Devices are available on an Online Portal.

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.

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.

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.

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.

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.

LIMITATION OF LIABILITY

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.

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.

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.

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.

INDEMNIFICATION

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.

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.

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.

EXPORT CONTROL AND GOVERNMENT USES

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.

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.

ARBITRATION; CLASS ACTION WAIVER

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.

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.

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

No Class Actions.  All disputes arising out of or related to this Agreement or any Product must be brought  on an individual basis, and you hereby waive your right to, and agree that you will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.

ADDITIONAL PROVISIONS

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.

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.

Enforceability.  If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.

Electronic Communications.  You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.

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

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.

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.

No Third Party Beneficiaries.  There are no third party beneficiaries to these Terms of Use.

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.

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.

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.

DEFINITIONS

“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.

“Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.

“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.

“Content” means data, content or other materials stored, backed-up, hosted, displayed, transmitted, routed, virtualized, processed or communicated using a Product.

“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.

“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.

“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.

“Enhancement” means any upgrade, update or modification to a Product.  All Enhancements will be subject to these Terms of Use.

“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.

“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.

“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.

“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.

“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.

“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.

“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.

THIRD PARTY LICENSE TERMS

KROLL EULA

 

LICENSE AGREEMENT: TERMS AND CONDITIONS OF USE

 

 

IMPORTANT NOTICE. THIS LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND KROLL ONTRACK INC. OR ANY SUBSIDIARY. AND ITS THIRD PARTY LICENSORS (“KROLL ONTRACK”). BY INSTALLING OR USING THIS SOFTWARE OR ASSOCIATED HARDWARE COMPONENTS IN ANY WAY YOU ACKNOWLEDGE THAT YOU HAVE READ. UNDERSTAND AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THIS SOFTWARE AND ASSOCIATED HARDWARE COMPONENTS IN ANY WAY.

 

LICENSE GRANT. Subject to the terms and conditions of this Agreement. including the payment of license fees. Kroll On Track grants you a limited. non-exclusive, non-transferable and non-sublicensable license to use this software and any upgrades, agents or add-on components (collectively, the “Software”), its associated user guides, installation guides or supplemental guides (collectively, the “Documentation”) and any associated dongles, license keys or other enforcement mechanisms (“Authentication Component”) for your own internal business purposes. The Software may only be used on the designated server environments for which you paid a license fee and is subject to the limitations set forth in this Agreement and the Documentation. Such use, including but not limited to capacity or duration of license, shall be authorized pursuant to a document, quote or invoice (an “Order”) provided by Kroll Ontrack or its authorized reseller or distributor. Such Order shall incorporate all of the terms and conditions of this Agreement. You may not exceed the authorized use without the payment of additional license fees.

TRIAL LICENSE. If a trial version of the Software is obtained from Kroll Ontrack or its authorized resellers or distributors, the Software may be used for evaluation purposes only and is subject to the terms and conditions of this Agreement. The trial version of the Software may be used as of the date of delivery for a period of thirty (30) days unless terminated earlier with or without cause by either party. Upon expiration or termination of the trial version of the Software, all rights granted to you will terminate and you shall discontinue all use of the Software unless you purchase an authorized license pursuant a valid Order. If you choose not to purchase a license, the trial version of the Software must be destroyed including all copies thereof.

MSP LICENSE. If you are a service provider or managed service provider (collectively. “MSP”) that provides software and systems management services to third parties, you may, subject to the terms and conditions of this Agreement, use the Software, Documentation and any associated Authentication Component in the performance of the foregoing services for a single customer at any one time. In the event that the MSP deploys and uses the Software through a hosted environment, the MSP shall provide the name and location of their customer for whom the Software will be used. Deployment for the purposes of servicing multiple customers concurrently per Software license is prohibited. MSP shall not permit their customers to access and/or use the Software directly, either via a hosted software solution or a hosted or leased hardware solution.

THIRD PARTY USE. If you license the Software for your internal business purposes but contract with a third party to perform services such as network management, monitoring. Implementation, consulting or other outsourcing services for you (the “Consultant”), the Consultant may use the Software and Documentation licensed by you solely for your benefit in the performance of such contract. provided. however, that you ensure that the Consultant uses the Software, Documentation and/or Authentication Component in accordance with the terms of this Agreement. You shall be liable to Kroll Ontrack for the acts and omissions of the Consultant in connection with their use of the Software, Documentation and/or Authentication Component.

Notwithstanding the foregoing, a MSP or Consultant shall not use the Software, including any Authentication Component if applicable, for its own internal business use.

LICENSE RESTRICTIONS. You shall not: (a) remove any product identification. copyright notices. or other notices or proprietary restrictions from this Software: (b) sell, lease. rent, copy, or distribute this Software. Documentation and any associated Authentication Component to another except as expressly permitted herein; (c) cause or permit reverse engineering, disassembly. decompilation or alteration of this Software except 10 the extent such restriction is expressly prohibited by applicable law; or (e) use the Software for competitive analysis purposes. You may make one copy of the Software and Documentation solely for backup or archival purposes. You may not copy any Authentication Component.

ASSIGNMENT. You may not assign or transfer the rights or obligations under this Agreement to another party without the express written consent of Kroll Ontrack. Any attempt to assign the Agreement without Kroll Ontrack’s consent shall be null and void.

TERM. Your license to use the Software is effective until terminated. Your failure to comply with any term or condition of this Agreement. including failure to pay the appropriate license fees, shall result in termination of your license to use the Software. Documentation and any associated Authentication Component(s). Upon termination. you shall discontinue all use of the Software. destroy the Software and Documentation. together with all copies thereof, and return any associated Authentication Component(s).

COPYRIGHT/OWNERSHIP. This Software, its source code, the Documentation and any associated Authentication Component are proprietary products of Kroll On Track and are protected by copyright and other intellectual property laws. The Software is licensed and not sold. You acquire only the right to use the Software and do not acquire any rights. express or implied. in the Software or media containing the Software other than those specified in this Agreement. Kroll On Track shall at all times retain all rights, title interest including intellectual property rights. in the Software and media, Documentation and any associated Authentication Components.

TRADEMARKS. Ontrack, PowerControls and other Kroll Ontrack brand and product names referred to herein are trademarks or registered trademarks of Kroll Ontrack Inc. and/or its parent company, Kroll lnc., in the United States and/or other countries. All other brand and product names are trademarks of their respective owners.

EXPORT RESTRICTIONS. You agree to comply fully with all laws and regulations of the United States and other countries (Export Laws) to assure that neither the Software. Documentation nor any associated Authentication Component, are (I) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

None of the Software or underlying information or technology, Documentation or any associated Authentication Component, may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.

AUDIT RIGHTS. You shall maintain accurate records containing all necessary data required for verification of compliance with the terms of this Agreement. Kroll Ontrack may, during normal business hours, and upon reasonable prior notice to you, audit and analyze your records to verify compliance hereunder.

DISCLAIMER OF WARRANTIES. THIS SOFTWARE, DOCUMENTATION AND ANY ASSOCIATED AUTHENTICATION COMPONENT IS DISTRIBUTED ‘AS IS’ AND YOU, ITS USER, ASSUME ALL RISKS WHEN DOWNLOADING OR USING IT, THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. KROLL ONTRACK DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KROLL ONTRACK DOES NOT WARRANT THAT THE SOFTWARE IS NON-INFRINGING, THAT IT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE.

LIMITATION OF LIABILITY. IN NO EVENT SHALL KROLL ONTRACK BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING DIRECT. INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHICH SHALL INCLUDE WITHOUT LIMITATION. DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION. OR OTHER PECUNIARY LOSS) WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF KROLL ONTRACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

MISCELLANEOUS. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions, The Agreement is governed by the laws of the State of Minnesota as applied to agreements between Minnesota residents entered into and to be performed entirely within Minnesota, and each party hereto submits to the exclusive jurisdiction of the Courts of that Stale. Each party, on behalf of itself and its affiliates, to the fullest extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this Agreement. The foregoing waiver applies to any action or legal proceeding, whether sounding in contract, tort or otherwise. Each party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other party or its affiliates as a party in any such action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. This is the entire agreement between you and Kroll Ontrack, which supersedes any prior or subsequent agreement including your purchase order terms, whether written or oral, relating to this subject matter.

GOVERNMENT USE. The Software and Authentication Components include “commercial computer software” and related documentation within the meaning of Federal Acquisition Regulation (“FAR”) 2. I01, 12.212, IIOd27.405-3 and Defense Federal Acquisition Regulations Supplement (“DFARS”) 227.7202 and 152.227-7014(a)(I). The Software and Authentication Components are proprietary to Kroll Ontrack and its third party licensors. You shall ensure that all users, including, but not limited to employees. personnel, representatives or agents of the U.S. Government, are permitted to use the Software and Authentication Components only as expressly authorized under this Agreement. In accordance with FAR 12.212 and DFARS 227.7202, neither you nor any government agency or entity shall receive any ownership, license, or other rights in and to the Software and Authentication Components other than the commercial software license rights expressly set forth herein.

Contractor/manufacturer is Kroll Ontrack Inc., 9023 Columbine Road. Eden Prairie. MN 55347.

PCLAI2012010

 

CONFIDENTIAL

KROLL

 

 

Paragon Software Group Corporation

 

 

Scope of Agreement

IMPORTANT– READ THIS CAREFULLY.  This End User License Agreement (“EULA”) is a legally binding contract between Paragon Software Group Corporation (“Paragon”) and you (“You”), the recipient of certain Licensed Product (defined below) from Paragon.  This EULA sets terms and conditions for Your use of that Licensed Product.  IT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS.  BY INSTALLING, COPYING OR OTHERWISE USING THE LICENSED PRODUCT, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS EULA.  IF YOU DO NOT AGREE TO THOSE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE LICENSED PRODUCT.

The software product accompanying this EULA (“Software”) and all affiliated materials, including handbooks, program descriptions, instruction manuals, and/or other information material (collectively “the Licensed Product”) are copyrighted and proprietary to Paragon.  Any copy protection present in the Licensed Product, a copyright notice, a registration number recorded in it and/or other features serving to identify the mechanism or characteristic of the Licensed Product shall not be removed, modified, or de-activated. The Licensed Product is licensed, not sold.  While Paragon owns the Licensed Product, You will have certain rights to use it after You accept this EULA.

Scope of License

Unless determined otherwise, Paragon grants You the simple right to install the Licensed Product on a device and use it for an unlimited period of time. The right to use is limited to the Software’s object code. It will expire if You violate the conditions of use established in this EULA. Paragon is not obligated to provide You with the source code of the Software. Unless determined otherwise in the following, the acquisition of this Licensed Product does not entitle You to provide, install and/or run the Licensed Product on multiple devices at once, create and/or distribute copies of the Licensed Product, transfer the Licensed Product from one device to another by electronic means or over a network after its original download or installation on a device, modify, decompile, adapt or translate the Licensed Product or combine with other software, or decompile, reverse engineer, reengineer, disassemble or otherwise reduce the Software to a human-perceivable form. The right to use is limited to the specific Licensed Product acquired in the respective version thereof and does not extend to subsequent versions of the Licensed Product. The EULA does not provide any rights to grant a sublicense to the Licensed Product to third parties. Paragon reserves all further rights, in particular the rights to dissemination, duplication and publication.

Special forms of use

An acquisition in the form of the granting of a pay-per-use license entitles You to run or use the Licensed Product on a one-time basis only; further use of the Licensed Product is not permitted. The acquisition of the Licensed Product under the stipulation of a particular term of contract only entitles You to use the Licensed Product until the term of contract expires. The acquisition of a technician license of the Licensed Product entitles You to use the Licensed Product on different systems, as long as the Licensed Product is not used on multiple systems simultaneously. The acquisition of a site license (multi-station license) of the Licensed Product entitles You to use the Licensed Product on an unlimited number of computers at a particular company site, while the acquisition of a company license of the Licensed Product entitles You to use the Licensed Product on all computers at all sites of the company. The use of free Licensed Product from print media or online media allows private use only, unless a separate agreement for commercial purposes of use provides otherwise. Commercial use is not permitted.

Restrictions

YOU SHALL NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, DISTRIBUTE, NETWORK OR CREATE DERIVATIVE WORKS BASED UPON THE LICENSED PRODUCT OR ANY PART THEREOF.

You agree that You will not use or otherwise export or re-export any Licensed Product except as authorized by United States laws.

Warranties and Disclaimers

Paragon warrants that the media on which the Licensed Product is distributed will be free from defects for a period of fifteen (15) days from the date of delivery of the Licensed Product to You. Your sole remedy in the event of a breach of this warranty will be that Paragon will, at its option, replace any defective media returned to Paragon within the warranty period or refund the money You have paid for the Licensed Product.

THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

Paragon is in no way responsible for malfunctions or damage caused by modification of the Licensed Product or the use of the Licensed Product in conjunction with hardware configurations, platforms or operating systems other than the recommended or intended hardware configuration, platform or operating system. Any liability for defects for alpha/beta versions (pre-release versions) of the Licensed Product relinquished free of charge is excluded.

IN NO EVENT WILL PARAGON OR ITS LICENSORS BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR LOSS OF DATA, EVEN IF PARAGON OR A LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.  SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

PARAGON MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY THAT USE OR RESULTS OF THE USE OF THE LICENSED PRODUCT WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS, OR THAT THE LICENSED PRODUCT WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND PARAGON DISCLAIMS ANY LIABILITY RELATING THERETO. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR OWN COMPUTER SYSTEM.  WITHOUT PRIOR NOTICE, PARAGON MAY MODIFY, SUSPEND, OR DISCONTINUE THE LICENSED PRODUCT.  WHENEVER PARAGON ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE LICENSED PRODUCT, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

Indemnification

WHENEVER YOU USE THE LICENSED PRODUCT, YOU WILL INDEMNIFY AND HOLD PARAGON, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO (A) ANY SUITS OR CLAIMS ARISING OUT OF YOUR BREACH OF THIS EULA, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (B) YOUR USE OF THE PARAGON PRODUCTS; OR (C) ANY ACTION TAKEN BY PARAGON AS PART OF ITS DUE DILIGENCE REGARDING A SUSPECTED VIOLATION OR AS A RESULT OF ITS DETERMINATION THAT A VIOLATION OF THIS EULA HAS OCCURRED.

Term of License

This EULA remains in force for as long as You use the Licensed Product in compliance with the terms herein.

Your rights under this EULA terminate without notice from Paragon if You fail to comply with any provision hereof.  If at any time Paragon discovers You are not in compliance with this EULA, it may without further notice to You or obligation to allow a cure period require You to return all media containing Licensed Product and to remove the Licensed Product and all files created by it from any systems on which it was installed, in a way that guarantees non-recoverability and, upon demand by Paragon, to confirm compliance with these requirements in writing under penalty of perjury.

General Provisions

This EULA If may not be modified, varied or altered, unless agreed upon in writing by Paragon.

This EULA is governed by and interpreted in accordance with the laws of the state of California, USA.  The exclusive jurisdiction for any claim, action or dispute with Paragon or relating in any way to Your use of the Licensed Product shall be in the state and federal courts of the State of California and the venue for the adjudication or disposition of any such claim, action or dispute shall be in Orange County, California, USA.

You acknowledge that you have read this EULA, understand it, and that by using the Licensed Product you agree to be bound by this EULA’s terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between Paragon and You, and supersedes any proposal or prior agreement, oral or written, and any other communication between Paragon and You relating to its subject matter.  No additional or any different terms will be enforceable against Paragon unless Paragon gives its express consent, including an express waiver of the terms of this EULA, in writing signed by an officer of Paragon. You assume full responsibility for the use of the Licensed Product and agree to use the Licensed Product legally and responsibly in compliance with the terms of this EULA.

Should any provision of this EULA be declared unenforceable in any jurisdiction, that provision shall be deemed severable and shall not affect the remainder hereof. Paragon reserves all rights in the Licensed Product not specifically granted to You in this EULA.

 

 

EULA Version: February 2012

 

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.

 

RIGHTS TO THE PRODUCT

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.

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.

DATTO’s RIGHTS AND RESPONSIBILITIES REGARDING CONTENT

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.

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.

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.

ADMINISTRATOR

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.

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.

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.

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.

SECURITY

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.

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

INDEMNIFICATION

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.

LIMITATIONS OF LIABILITY

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.

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.

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.

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.

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.

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.

 

 

EXHIBIT A

 

MSP SERVICES AGREEMENT MINIMUM CUSTOMER TERMS

TERMS AND CONDITIONS REGARDING USE OF STORAGECRAFT SOFTWARE: This document concerns your use of StorageCraft Technology (“StorageCraft”) software provide to you by________________________________________________ (hereinafter referred to as “Company”). Company will provide software services to you as described below, which may include associated media, printed materials, and “online” or electronic documentation, including certain StorageCraft software products that it offers on an MSP basis, including without limitation ShadowSnap® (individually and collectively, the “Licensed Software”). Company does not own the Licensed Software and its use is subject to certain rights and limitations of which Company needs to inform you. Your right to use the Licensed Software is subject to your customer service agreement (“agreement”) with Company and your compliance with and consent to the following terms and conditions, which Company does not have authority to alter or amend.

 

OWNERSHIP OF LICENSED SOFTWARE. The Licensed Software is licensed to Company by StorageCraft. All title and intellectual property rights in and to the Licensed Software are owned by StorageCraft or its licensors. The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Software does not transfer to you any ownership right to the Licensed Software.

COPIES. You may not make any copies of the Licensed Software. You must uninstall, erase or destroy all Licensed Software installed on your computer(s) upon termination or cancellation of your agreement with Company, notice from Company, or transfer of your computer(s) to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Licensed Software.

LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Licensed Software, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.

NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Software to any third party, and you may not permit any third party to have access to and/or use the functionality of the Licensed Software.

TERMINATION. Without prejudice to any other rights, Company may suspend or terminate your rights to use the Licensed Software if you fail to comply with these terms and conditions. Further, your rights to use the Licensed Software may be suspended or terminated in the event that Company violates its agreement with StorageCraft or that Agreement is otherwise terminated. In the event of suspension, termination or cancellation, the functionality of the Licensed Software may cease, the Licensed Software may deactivate, and/or you may be required to stop using the Licensed Software and destroy all copies of the Licensed Software and all of its component parts.

COOPERATION. Upon termination of your rights to use the Licensed Software, you will cooperate in: (a) removing or deactivating all copies of the Licensed Software from your computers on which it is installed; and (b) returning or destroying all media containing the Licensed Software.

NO WARRANTIES, LIABILITIES, OR REMEDIES BY STORAGECRAFT. ANY WARRANTIES, LIABILITY FOR DAMAGES, AND REMEDIES ARE PROVIDED SOLELY BY COMPANY AND NOT BY STORAGECRAFT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU DISCLAIM ALL WARRANTIES BY STORAGECRAFT AND ANY LIABILITY BY STORAGECRAFT OR ITS SUPPLIERS FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OF THE LICENSED SOFTWARE OR YOUR AGREEMENT OR RELATIONSHIP WITH THE COMPANY.

PRODUCT SUPPORT. Any product support for the Licensed Software is provided to you by Company and not by StorageCraft.

NO-FAULT TOLERANT. THE LICENSED SOFTWARE CONTAINS TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.

EXPORT RESTRICTIONS. The Licensed Software is of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Licensed Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

UNITED STATES GOVERNMENT RESTRICTED RIGHTS RESTRICTED RIGHTS LEGEND. All StorageCraft products and documentation are commercial in nature. The Licensed Software and associated documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Licensed Software and documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained In the end user license agreement.

Kroll EULA – see Third Party License Terms

 

Paragon EULA – see Third Party License Terms

 

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.

 

USE OF PRODUCT

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.

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.

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.

Third Party Technology/Services. Certain Products may provide access to third party services, the use of which is subject to such third parties’ terms. By using any Product with such capability, you expressly agree to all applicable Third Party Networking Terms.

Links to Third Party Applications. Third parties may create products or services (“Third Party Apps”) that connect to or interact with certain Products. Any Third Party App is provided by a third party, not us, pursuant to a separate agreement between you and the third party provider. We do not endorse, support or control any Third Party Apps. We make no representation or warranty with respect to any Third Party App and we expressly disclaim all liability with respect to your use of any Product with a Third Party App.

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.

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.

LIMITATIONS ON RIGHTS OF USE

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.

Limitation on Product Use. Use of the Product must at all times be in compliance with all Applicable Laws. The Product may not be used (i) in a manner that infringes or misappropriates any Intellectual Property Rights or other rights of any third party; (ii) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Law; or (iii) to transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Product.

Failover Mode Limitations. If a Product includes Failover Mode capability, Failover Mode may be used only for a limited testing period and for the internal business operations of the Network Owner during a period of documented primary internet outage affecting the Network on which the Networking Device with Failover Mode capability is deployed. Except with our express consent, Failover Mode may not be used for any other situation nor may it be used in a manner that (i) adversely impacts Datto or the underlying wireless service provider; (ii) results in excessive bandwidth usage; (iii) is for the benefit of any public or third party access to wireless service; or (iv) involves the use of non-authorized equipment.

Datto’s Rights. In the event we reasonably believe any Product use: (i) violates the restrictions or limitations in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Product; or (iii) may otherwise subject us to liability, we reserve the right to disable Network Services and access to the Product through the Network Management Portal. We may also take such action as required to comply with Applicable Law. We will use reasonable efforts to contact an Administrator prior to taking such action. Notwithstanding the foregoing, we may restrict access to any Product without prior notice including as necessary to comply with Applicable Law or protect against threats to our systems or any Product. If we take any such action without prior notice, we will provide notice to an Administrator within a reasonable time, unless prohibited by Applicable Law.

Certain Uses Not Supported. Use of the Product is not authorized, will not be supported by us, and any warranties will be void, if the Product is modified in any way or used in a manner for which it is not intended, including but not limited to (i) using software or hardware that is not intended, recommended or approved by us for the Product; or (ii) use, access and support of the Product by other than authorized personnel who are knowledgeable about the Product and are able to demonstrate the required level technical competency with respect to the use of the Product.

Your Obligations. You agree to immediately notify us of any unauthorized use of the Product of which you become aware and agree to immediately take such actions as are necessary to end and prevent any such unauthorized use. You acknowledge and agree that any breach of this Section 2 will cause immediate and irreparable injury to us, and in such event, we may seek and obtain injunctive relief, without bond or other security, in addition to other remedies available at law and in equity.

REMOTE MONITORING AND MANAGEMENT

Your use of the Product includes access to and use of the Network Management Portal hosted by us through which a Product is managed.

You are responsible for all activities that occur in your Network Management Portal account (“Account”), regardless of whether the activities are undertaken by you, or by others on your behalf (including any administrative users and/or any Network Owner you authorize). Your Account may be hosted in the U.S. regardless of where you, any Networking Device or Network may be located. You are responsible for securing any necessary consents, if any, related to the hosting location of your Account. You are responsible for the security of your Account settings and access credentials (including all passwords). If an unauthorized party may be using your Account, if your Account access credentials are lost or stolen, or if you become aware of any other actual or potential breach of security, you should notify us immediately. You agree that we will not be liable for any loss of any kind resulting from a) any party using your Account access credentials; and b) activity within your Account, either with or without your knowledge or authorization.

Certain Products may be used only in designated geographic regions and you represent and warrant that you will not use or in any way facilitate the use of such Products outside their designated geographic regions.

Your Responsibilities. You are responsible for proper installation of the Product on a Network with a full time primary internet service. You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to use of the Product. In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to Networking Device access, power backup, Network connectivity, internet connectivity and primary internet service.

THIRD PARTY ADMINISTRATOR RIGHTS AND RESPONSIBILITIES

Third Party Administrator Responsibilities Regarding Product Use. If you are a third party Administrator managing the Product on behalf of a Network Owner, you represent and warrant that you are acting as an agent on behalf of the Network Owner (who is the principal) and that you are acting within the scope of your agency. Accordingly, you agree to obtain Network Owner’s authorization and comply with Network Owner’s instructions at all times with respect to use of the Product, including but not limited to: type of Network Service, Networking Device settings, access controls, transition of Product to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, Network Owner and/or Datto.

Network Owner Terms. If you are a third party Administrator managing the Product on behalf of a Network Owner you must ensure that each Network Owner agrees to certain Network Owner Terms as part of a valid, enforceable contract between you and the Network Owner. Upon our request, you must provide evidence of each Network Owner’s acceptance of the Network Owner Terms. You agree to immediately notify us of any known or suspected breach of any Network Owner Terms and to assist us in the enforcement of the same.

MAINTENANCE, SUPPORT AND TRAINING

Datto’s Maintenance and Support. We will provide reasonable support for the Products in accordance with our then-current Datto Networking maintenance and support Policies, as the same may be updated by us from time-to-time.

Direct Support. By requesting support services directly from us, you represent that you are authorized to do so and are knowledgeable about the Product and are able to demonstrate the required level of technical competency with respect to use of the Product. We reserve the right not to provide direct support to any individual not meeting these requirements.

Support Authorization. You agree to cooperate in good faith to implement our suggestions and solutions, and assist us in maintenance and troubleshooting issues, with respect to support of the Product. We may rely on the instructions and authorizations given to us by any Administrator with access to a Product, and we will have no obligation to inform any other Administrator of the Product of the same.

Training. We make available opportunities for training on the Product. Our training provides instruction on the general use and functionality of the Product but is not the same, and should not be relied on, as advice in specific technical support situations. You acknowledge and agree that we will not be liable for any statements or omissions made during training or contained in training materials.

TERM AND TERMINATION

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.

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.

Effect of Termination. In the event of termination for any reason you must immediately stop using the Network Management Portal for the Product and securely destroy all related Confidential Information. The licenses granted and all Network Services with respect to a given Product will automatically terminate on expiration or termination under this Section 6. We reserve the right to permanently delete or disable access to all related Network Data, without liability for such deletion, 30 days after the termination.

Survival. Notwithstanding anything to the contrary, the following provisions will survive termination: those that by their express terms survive or by their nature may be reasonably inferred to survive, as well as sections 8 (Use of Information), 9 (Confidentiality), 10 (Warranty and Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 13 (Export Controls and Government Uses), 14 (Arbitration/Class Action Waiver); 15 (Additional Provisions) and 16 (Definitions).

UPDATES AND TESTING

Right to Change Products. We reserve the right at any time, in our sole discretion, to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to any and all Specifications for the Products. We will use reasonable commercial efforts to provide you notice of any material changes.

Remote Testing and Updates. You agree that we may and hereby authorize us, at any time and from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product.

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.

USE OF INFORMATION

Use of Feedback. If you provide us with reports, comments, suggestions, ideas or other feedback regarding the Products, whether written or oral (collectively “Feedback”), either directly or through any third party, you do so without any expectation of compensation. You hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the Products and for any other purpose, including in all media now known and later developed. Feedback is strictly voluntary, and we are not required to hold it in confidence.

Use of 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.

Use of Network Data. We store and make available to you for a limited period through the Network Management Portal certain Network Data to allow you to monitor Network use and performance. We reserve the right to delete all such data after a period of 30 days.

Use of Log Data. Operational data concerning use of the Products, including but not limited to, information servers automatically record relating to the access and use of the Products, such as IP addresses, authentication tokens, access logs, Networking Device settings and Network Management Portal settings are used by us to provide and manage use of the Products and our business and you agree we may use such Log Data for such purposes.

CONFIDENTIALITY

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.

Products are Datto Confidential Information. The Products, including their structure, organization and source code, are comprised of commercially valuable assets belonging to us or our licensors, the development or acquisition of which required the investment of substantial time, effort and cost. You acknowledge and agree that the Products may contain trade secrets and they (and all portions thereof) are our Confidential Information and are proprietary to us. Accordingly, you hereby agree to use the highest degree of care to maintain the confidentiality of the Products.

Permitted Disclosures. Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors and independent contractors (collectively “Representatives”) who have a need to know such Confidential Information in order to perform their duties provided they have a legal duty to protect the Confidential Information. A party receiving Confidential Information of the other party assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.

Required Disclosures. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.

Injunctive Relief. Each party acknowledges that any breach of any provision of this Section 9 (Confidentiality) by the receiving party, or its Representatives, may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.

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.

WARRANTY AND DISCLAIMER

Limited Datto Hardware Warranty. Warranty terms for physical hardware Networking Devices are available on an Online Portal.

EXCEPT FOR THE LIMITED HARDWARE WARRANTY, YOU ACKNOWLEDGE THAT THE PRODUCTS, INCLUDING ALL NETWORK SERVICES, ARE PROVIDED AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PRODUCT WILL MEET ANY NETWORK OWNER OR ADMINISTRATOR REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED.

THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND WIRELESS SERVICE AVAILABILITY. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL DATTO WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE CUMULATIVE LIABILITY (AND THAT OF OUR SUPPLIERS/LICENSORS FOR ALL CLAIMS AND DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR STRICT LIABILITY) WILL BE LIMITED TO DIRECT DAMAGES ONLY THAT DO NOT EXCEED AN AMOUNT EQUAL TO THE FEES WE RECEIVE FOR THE INDIVIDUAL APPLICABLE PRODUCT IN THE 12 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT INVOLVING THAT PRODUCT GIVING RISE TO THE CLAIM OCCURRED.

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.

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.

INDEMNIFICATION

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.

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.

Process. The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.

EXPORT CONTROL AND GOVERNMENT USES

Export Compliance. You represent and warrant that in connection with your use of the Products you: (i) will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority; (ii) will not export or re-export or allow the export or re-export of the Products in violation of any such export laws, restrictions, controls or regulations.

Government Entities. If Products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon Datto unless specifically agreed to by Datto in writing. If the Network Owner is a U.S. Government entity or person, the Product is being provided as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101).

ARBITRATION; CLASS ACTION WAIVER

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.

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.

Courts. In any circumstances where the parties may litigate in court, the parties hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 15.2.

No Class Actions. All disputes arising out of or related to this Agreement or any Product must be brought on an individual basis, and you hereby waive your right to, and agree that you will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.

ADDITIONAL PROVISIONS

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.

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.

Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.

Electronic Communications. You consent to receive communications from us in electronic form and agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.

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

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.

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.

No Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Use.

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.

Notices. All notices required or permitted hereunder will be in writing and delivered by nationally recognized overnight courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to you will be sent to you at the address specified in an Online Portal. Notices to us must be sent to 101 Merritt 7, Norwalk, CT 06851 Attn: General Counsel. In addition, we may send any notice required or permitted hereunder to you at the email address specified in an Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.

Entire Agreement. These Term of Use, and applicable Policies and Specifications constitute the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.

DEFINITIONS

“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.

“Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.

“Confidential Information” means any information whether oral, written, electronic, or in any other format disclosed by either you or Datto to the other related to the operations of either party or a third party that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure are reasonably to be treated as confidential. Information available to you through the Network Management Portal is Datto Confidential Information.

“Datto Software” means the software technology and all Intellectual Property Rights of Datto and its licensors in the Products, including (i) any software embedded in or otherwise running on a Networking Device; and (ii) the Network Management Portal.

“Enhancement” means any upgrade, update or modification to a Product. All Enhancements will be subject to these Terms of Use.

“Failover Mode” means continued use of certain Products through means of LTE or other cellular wireless internet service in the event of primary internet failure affecting the Network on which such a Networking Device with Failover Mode is deployed.

“Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.

“Network” means a private connection of one or more LANs, connected to the internet through a primary ISP, belonging to and intended to be accessible only by a single organization/entity or its authorized users and not for multi-tenant or public use.

“Network Data” means information about traffic on the Network on which a Networking Device is deployed, devices on the Network, and information transmitted by devices attempting to access or download data via the Network.

“Networking Device” means any Datto networking hardware device.

“Network Owner” means the person or entity that owns, licenses, or lawfully controls the Network on which a Networking Device is deployed.

“Network Management Portal” means a remote web-based software platform provided by Datto through which configuration, management, monitoring, support and use of the Products is made available.

“Network Services” means all services provided by or on behalf of Datto that are part of or comprise any Product, including without limitation, wireless access, data routing and/or switching on a local area network, configuration, maintenance, monitoring, and support of Networking Devices, failover protection for certain Products in the event of primary internet failure, technical support, training, or other features and functionalities as they become available. Network Services may be provided through any of the following, or any combination of the following, or any later developed or implemented, means: (i) the use of a Networking Device owned by or under the control of a Network Owner or a third party Administrator; (ii) the use of the Network Management Portal.

“Online Portal” means a remote web-based application or portal provided by Datto that contains information related to the Products. The Network Management Portal is one type of Online Portal.

“Product” means any Datto networking product consisting of a Networking Device and Network Services.

“Policies” means the terms and conditions of any policies applicable to access, use, and support of the Products.

“Service Subscription” means the type of Network Service Plan and payment Term in which a Networking Device is enrolled, as set forth in the Datto Networking Policies.

“Specifications” means the Policies, documentation, user manuals and any technical publications and materials, as applicable, relating to the Products.

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.

 

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.

 

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.

USE REQUIREMENTS

Certain Products may only be used in the U.S.

The Products may only be used on a Network having primary internet service through an Internet Service Provider other than through the Product.

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.

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.

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.

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.

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.

FAILOVER MODE CAPABILITY.

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.

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.

Wireless Service Provider Terms

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.

The Product may not be deployed in any area that requires continuous roaming access.

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 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.

 

REGISTRATION AND ACCESS TO DATTO DRIVE

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.

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.

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.

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.

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.

USE OF DATTO DRIVE

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.

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.

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.

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.

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.

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.

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.

PREMIUM DATTO DRIVE ACCOUNTS

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.

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.

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.

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.

LIMITATIONS ON RIGHTS OF USE

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.

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.

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.

RIGHTS AND RESPONSIBILITIES REGARDING CONTENT

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.

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.

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.

THIRD PARTY SERVICES AND APPS

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.

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.

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.

MAINTENANCE AND SUPPORT

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.

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.

TERM AND TERMINATION

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.

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.

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.

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.

UPDATES / CHANGES

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.

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.

USE OF INFORMATION

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.

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.

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.

WARRANTY DISCLAIMER

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.

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.

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.

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.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO 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 DATTO’S OBLIGATIONS HEREUNDER.

LIMITATION OF LIABILITY

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.

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.

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.

INDEMNIFICATION

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.

DMCA

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

 

EXPORT CONTROL AND GOVERNMENT USES

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.

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).

MISCELLANEOUS

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.

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.

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.

No Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Use, including any Authorized Users of your Account.

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.

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.

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.

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.

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.

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.

DEFINITIONS

“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.

“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.

“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.

“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.

“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.

“Partner” means an independent party authorized to sell Datto Drive.

“Specifications” means any written or electronic policies, documentation, technical or knowledge base publications, as applicable, relating to access, use and support of Datto Drive.

Last Updated May 2, 2016

 

DATTO 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.

 

ORDERS

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.

FREE TRIAL

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.

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.

USE OF PRODUCTS

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.

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.

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.

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.

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.

RESTRICTIONS ON PRODUCT ACCESS AND USE

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.

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.

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.

BACKEDUP DATA

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.

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.

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.

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.

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.

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).

USE OF OTHER INFORMATION

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.

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.

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.

FEES AND PAYMENTS FOR DIRECT CUSTOMERS

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.

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.

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.

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.

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.

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.

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.

YOUR RESPONSIBILITY FOR ACCESS TO YOUR PRODUCT ACCOUNT

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.

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.

SUPPORT

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.

UPDATES AND TESTING

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.

CONFIDENTIAL INFORMATION

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.

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.

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.

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.

WARRANTIES AND DISCLAIMERS

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.

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.

LIMITATION OF LIABILITY

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.

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.

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.

INDEMNIFICATION

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.

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.

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.

EXPORT CONTROL AND GOVERNMENT USES

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.

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.

ARBITRATION; CLASS ACTION WAIVER

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.

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.

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.

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.

TERM AND TERMINATION

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.

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.

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.

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.

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.

MISCELLANEOUS

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.

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.

Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.

Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.

Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.

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.

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.

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.

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.

No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.

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.

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.

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.

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.

DEFINITIONS

“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.

“Agreement” means an Order for a Product together with and subject to these Terms of Use.

“Applicable Law” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Terms of Use.

“Backedup Data” means the data and content that Customer designates for copying, backup and use with a Product.

“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.

“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.

“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.

“Device” means any hardware-based component of a Product offering.

“Enhancement” means any upgrade, update or modification to a Product. All Enhancements will be subject to these Terms of Use.

“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.

“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.

“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.

“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.

“Policies” means the terms and conditions applicable to order, configure, access, use, and support of the Products. Policies are published on an Online Portal.

“Specifications” means any Policies, documentation, user manuals or other materials relating to the Products. Specifications as may be published on an Online Portal.

“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.

“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.

“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.

“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.

EUROPEAN DATA PROCESSING ADDENDUM

This European Data Processing Addendum (“DPA”) amends the applicable Product Terms of Use for a Datto Product only to the extent the Product is used to Process Personal Data covered under the GDPR.

 

Definitions

 

Capitalized words are defined in this section or when first used throughout this DPA or the applicable Product Terms of Use.

 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.

 

“Controller”, “Data Subject”, “Processor”, Processing” will have the meaning set forth in Article 4 of the GDPR.

 

“Data Subject Request” means a request made by or on behalf of a Data Subject to exercise a right for access to, rectification, objection, erasure or other applicable right recognized by the GDPR of that Data Subject’s Personal Data.

 

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

 

“Personal Data” means information relating to an identified or identifiable natural person (Data Subject) covered under the GDPR that is directly or indirectly submitted, stored or Processed via use of the Product by Customer, its Affiliates, clients or end users.

 

“Product” means a Product and all related services provided by Datto that Processes Personal Data covered by this DPA.

 

“Subprocessor” means a third party that, by reason of its role in performing services on behalf of Datto with respect to Datto’s provision of a Product, may have logical access to Personal Data covered by this DPA.

 

Effectiveness

 

This DPA will be effective from the later of (a) May 25, 2018; or (b) the date on which Customer clicks to accept the Product Terms of Use and this DPA or Datto and Customer otherwise agree to this DPA.

 

In the event of a conflict between this DPA and the Product Terms of Use concerning the subject matter hereof, the terms of this DPA will govern.

 

Duration of Processing/Term of DPA

 

This DPA and Datto’s Processing of Personal Data will terminate automatically upon termination of the Product Terms of Use and of any post termination period during which Datto makes Personal Data available for export by Customer, until its final deletion.

 

Controller/Processor Roles

 

For purposes of this DPA, the parties agree that Dato is a Processor of Personal Data. This DPA does not apply where Datto is a Controller of Personal Data.

 

Customer may act either as a Controller or Processor, as applicable, of Personal Data. If Customer is not the Controller of Personal Data, Customer represents and warrants to Datto that Customer has the right and authority to appoint Datto as a Processor and provide instructions to Datto, and such actions have been authorized by the appropriate Controller of the Personal Data.

 

Customer has sole responsibility for the quality, ongoing accuracy, legality and scope of Personal Data and the means by which Customer acquired Personal Data. Customer represents and warrants that it has sufficient rights and all third party consents as may be necessary and appropriate for the use of the Personal Data with the Product and that its submission of Personal Data to Datto will comply with the GDPR and all applicable laws.

 

Processing of Personal Data

 

Datto will Process the Personal Data only on the instructions of Customer, including through Customer’s use and configuration of the features within the Product. Customer instructs Datto to Process the Customer Personal Data (a) to provide the applicable Product and related technical and administrative support consistent with the Product Terms of Use and this DPA; (b) as further instructed via Customer’s use of the Product; and (c) to comply with other reasonable instructions provided by Customer (via email or support tickets) that are consistent with the nature and scope of the Product.

 

Datto will inform Customer if, in its opinion, an instruction violates the terms of the GDPR.

 

Subject Matter and Nature of Processing

 

The subject matter and scope of Processing is Datto’s provision of the Product, including related technical and administrative support (through management portals or otherwise) that is the subject of the Product Terms of Use. Datto will Process Personal Data that is provided directly or indirectly by Customer, its clients or end users to Datto for the purpose of providing the Product that is the subject of the Product Terms of Use.

 

Data Subject Requests

 

If Datto receives a Data Subject Request related to the Product, to the extent it is able to do so, and it is legally permitted, Datto will notify Customer and/or direct the Data Subject to make the request directly to Customer.

 

Customer is responsible for responding to any Data Subject Requests. Taking into account the nature of the Processing, Datto will provide Customer with commercially reasonable assistance in responding to a Data Subject Request, to the extent legally permitted, if such Data Subject Request is reasonably possible consistent with the functionality of the Product and is required under applicable law. To the extent legally permitted, Customer will be responsible for any costs arising from Datto’s assistance.

 

Duty of Confidentiality

 

Datto ensures that its personnel engaged in the processing Personal Data have committed to maintain the confidentiality of Personal Data by requiring such personnel to execute written confidentiality agreements.

 

Data Deletion

 

Within a reasonable amount of time following expiration or termination of the applicable Product Terms of Use plus any post termination period during which Customer has the ability to export Personal Data, Datto will delete Personal Data. Customer hereby instructs Datto to delete all Personal Data after such period. It is Customer’s responsibility to export any Personal Data prior to its deletion.

 

Personal Data Breach

 

If Datto becomes aware of and confirms a breach of Datto’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data covered by the GDPR in Datto’s custody or control, Datto will, without undue delay, notify Customer and exercise best efforts to mitigate the effects and to minimize any damage resulting from such a security incident.

 

Customer agrees that an unsuccessful security incident will not be subject to this section. An unsuccessful security incident includes but is not limited to things such as attempts at unauthorized access to Personal Data or to any of Datto’s equipment or facilities storing Personal Data, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers).

 

Datto’s obligation to report or respond to a security incident will not be construed as an acknowledgement of any fault or liability of Datto with respect to the security incident. Datto will have no obligation to respond to any incidents caused by Customer or anyone acting with Customer’s authorization.

 

Subprocessing

 

Customer acknowledges and agrees that Datto Affiliates may be retained as Subprocessors and that Datto and its Affiliates respectively may engage third party Subprocessors as needed to provide a Product. Customer hereby consents to the use of Subprocessors as described in this section.

 

A current list of Subprocessors for the Product will be available at www.datto.com/subprocessors. Datto will provide prior notification, by updating the list of Subprocessors and/or providing notice in the applicable Product management portal, of a new Subprocessor before authorizing such new Subprocessor to have access to Customer’s Personal Data in connection with the provision of the applicable Product.

 

Customer may reasonably object to Datto’s use of a new Subprocessor by notifying Datto promptly in writing, explaining the reasonable grounds for objection, within ten (10) business days following Datto’s notice described above. Datto will use commercially reasonable efforts to make available to Customer a change to Customer’s configuration or use of the Product to avoid use of the objected to new Subprocessor. If Datto is unable to make available such change within a reasonable period of time, not to exceed thirty (30) days, either party as its sole remedy may terminate the applicable Product Terms of Use with respect only to those services which cannot be provided by Datto without the use of the objected-to new Subprocessor. In such case, Datto will refund any prepaid fees covering the remainder of the term applicable to such Product.

 

Datto will use only Subprocessors that have executed written contracts with Datto containing obligations that are substantially similar to those of Datto under this DPA. Datto will be liable for the acts and omissions of its Subprocessors to the same extent Datto would be liable if performing the services of each Subprocessor directly under the terms of this DPA.

 

A Product or Product management portal may provide links or integrations or an API which may be used to facilitate integrations to or from third party products or services (“Third Party Applications”). If Customer elects to integrate with, enable, access or use an API to interact with such Third Party Applications it does so at its own risk and Datto has no responsibility or liability for any Personal Data processed by or through such Third Party Applications. Customer expressly acknowledges and agrees that all enabled Third Party Applications are expressly authorized by Customer and Datto is not a co-processor, subprocessor or controller with respect to any Personal Data processed by or on behalf of Customer through a Third Party Application.

 

Audit

 

Datto will cooperate with any Customer audit to verify Datto’s compliance with its obligations under this DPA by making available, subject to non-disclosure obligations, third party audit reports, where available, descriptions of security controls and other information reasonably requested by Customer regarding Datto’s security practices and policies.

 

Taking into account the nature of the Processing and the information available to Datto, Datto will provide, at Customer’s cost if legally allowed, commercially reasonable cooperation and assistance to Customer regarding Customer’s compliance obligations described in Articles 32-36 of the GDPR.

 

Limitation of Liability

 

To the maximum extent allowed by applicable law, the total combined liability for both Datto and Customer and any of their Affiliates arising out of or related to this DPA is subject to the exclusions and limitations of liability set forth in the applicable Product Terms of Use. Any regulatory penalties imposed on either party resulting from this DPA will count toward such liability cap.

 

Security

 

Datto maintains commercially reasonable technical and organizational measures to protect against accidental or unlawful access, destruction, loss or alteration of Personal Data under its control. Datto may modify such measures, provided that any changes will not result in a material degradation of the security measures.

 

A Product or Product management portal may make available certain Customer controlled security features, which may include multi-factor authentication, administrative access controls and local encryption. Datto makes available best practices for Customer to adopt to help protect against accidental or unlawful access, destruction, loss or alteration of Personal Data. Customer is responsible for securing Personal Data under its control, including but not limited to properly configuring and using available Customer controlled security features.

 

Transfers of Personal Data

 

Certain Products allow Customer the ability to use a data center located in the European Economic Area (“EEA”) for Processing of Personal Data. For all such Products, Customer is responsible for using an appropriate data center location in the EEA. Certain data related to technical and administrative support for a Product or its management portal (“Metadata”) may be hosted in the U.S. even if Customer uses an EEA data center.

 

Datto, Inc. and its U.S. subsidiaries self-certify to and comply with the EU-U.S. and Swiss-U.S. Privacy Shield as a transfer mechanism regarding the transfer of Personal Data from the European Union, the EEA and Switzerland to countries that do not ensure adequate levels of data protection. Transfers of Metadata and Personal Data are validated through Datto’s EU-U.S. and Swiss-U.S. Privacy Shield certification.

 

The foregoing will not apply if Datto adopts an alternative GDPR recognized compliance standard for the lawful transfer of Personal Data outside the EEA, Switzerland or the UK.

 

Governing Law

 

This DPA is governed by the law of England and Wales and is subject to the exclusive jurisdiction of the courts of England and Wales.

 

Notices

 

Notice to Datto under this DPA should be sent to Datto, Inc., 101 Merritt 7, 7th floor, Norwalk, CT 06851 Attn: Legal Department.

 

If Customer is not the primary administrator for a Product (for example, a client who purchases a Product from a managed service provider) Customer acknowledges and agrees that Datto will communicate all notices related to this DPA via email or through the Product management portal with the party that is the primary administrator for the Product.

 

If Customer is the primary administrator for a Product (for example, a managed service provider that manages a Product for its client) Customer acknowledges and agrees that it is responsible for receiving and promptly relaying all notices related to this DPA received via email or through the Product management portal to the appropriate parties, including those notices required by applicable law.

 

It is Customer’s responsibility to maintain current, accurate contact information within the applicable administrative portal for the Product for purposes of facilitating all notices.

 

General

 

The terms of this DPA are confidential information of Datto covered by the confidentiality provisions of the applicable Product Terms of Use. Customer agrees not to disclose the terms of this DPA.

 

Datto reserves the right to modify this DPA, including if different GDPR recognized compliance standards become available, or as needed to maintain compliance with the GDPR or other applicable law.

 

DATTO RESELLER AGREEMENT

Last Modified July 2017

 

Welcome to Datto and thank you for participating in the Datto reseller program.

 

This Reseller Agreement (the “Agreement”) is 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, the person or entity identified as the reseller in the registration process to become a reseller (“you” or “Reseller”).

 

BY CLICKING “I AGREE” BELOW YOU ACKNOWLEDGE YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO ABIDE BY ITS TERMS, INCLUDING ALL APPLICABLE POLICIES AND THIRD PARTY TERMS DESCRIBED THROUGHOUT.  IF YOU ACCEPT ON BEHALF OF A BUSINESS OR LEGAL ENTITY, YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT AND “YOU” WILL REFER TO THAT LEGAL ENTITY.

 

This Agreement governs the relationship between Datto and you as a reseller of our Products and is separate from other agreements that apply to use or administration of our Products.  Each party that uses any Product must agree to the applicable Product Terms of Use.  If you use a Product either for your own internal use or as a Product Administrator on behalf of another party, you must agree to the Product Terms of Use applicable to that Product.   If you act as a Product Administrator, you must also ensure the Content Owner for that Product agrees to the applicable Content Owner Terms found on an Online Portal.   If you resell a Product to a Content Owner that will directly use or support the Product, you must ensure that Content Owner is properly registered for the Product and agrees to the applicable Product Terms of Use.

 

Capitalized words are defined in the last section or when first used throughout this Agreement.

 

APPOINTMENT; RESELLER RIGHTS AND OBLIGATIONS

Appointment.  Subject to the terms and conditions of this Agreement, Datto appoints you as a reselling partner of the Products to Content Owners in the Territory. This appointment is non-exclusive and we expressly reserve the right to authorize others to use, market and re-sell the Products in the Territory.

Right to Purchase, Market and Resell Products. Datto grants you a limited, non-transferable, non-sub-licensable, non-exclusive (i) right to purchase the Products in order to market, distribute and resell the Products to Content Owners for use within the Territory and (ii) right to use the Products and to display and distribute Specifications and Marketing Materials,  as necessary to promote, advertise, demonstrate and market the Products.

Use of Third Party Technology. Certain Products involve the use of third party technology, the use and/or resale of which is subject to such third parties’ license and resale terms. These Additional Resale Terms found on an Online Portal, are incorporated into and made part of this Reseller Agreement as applicable to certain Products. By accepting this Agreement, you agree to comply with all applicable Additional Resale Terms.

Online Portals.  As an authorized reseller, you are granted account access to one or more Online Portals to order, manage, support, use, and/or market certain Products.  You are responsible for the security of all access credentials, including passwords, to Online Portals and you are responsible for any action that you permit, assist or facilitate any person or entity to take related to your Online Portal account(s), including any sub-accounts created under your Online Portal account(s).   Your Online Portal account(s) may contain Administrative Data about you, Content Owners and Products.  You acknowledge and agree that Online Portals may be hosted in the U.S. regardless of where you, any Content Owner, any Product or any Content related to any Product may be stored or hosted.  You are responsible for securing any necessary consents, if any, related to the hosting location of Online Portals.

Third Party Applications. Third party products or services (“Third Party Applications”) may connect to or interact with certain Products or Online Portals. Any Third Party Application is provided by the 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 Applications. We make no representation or warranty with respect to any Third Party Application and we expressly disclaim all liability with respect to your use of any Product or Online Portal with a Third Party Application.

Policies.  You acknowledge that you have reviewed, understand and agree to comply with our Policies as they relate to your activities under this Agreement. Our Policies can be found on an Online Portal or we will provide a copy of our Policies to you upon request. We reserve the right to update our Policies from time to time in our sole discretion.

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”), you do so without any expectation of compensation.  You hereby grant us a worldwide, irrevocable, transferable, 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.

Beta Products.   We may designate certain 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. As a reseller you may be invited, but are under no obligation, to use a Beta Product.  You may not resell nor may you authorize any other party 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 the Product’s applicable 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.

RESERVATION OF RIGHTS; LIMITATIONS REGARDING PRODUCTS

Intellectual Property Rights. All Intellectual Property Rights in and to our Products,  Datto Marks and  Marketing Materials are and will remain the sole and exclusive property of Datto, or, as applicable of our suppliers and licensors, and you have no rights in any of the same other than as specifically set forth in this Agreement.  All rights not expressly granted to you under this Agreement are expressly reserved by Datto and our suppliers and licensors. You may not remove or modify any Product identification or proprietary notice of Datto or our suppliers or licensors from the Products, Marketing Materials or Specifications, including any copyright and trademark notices.

Right to Change Products.   We may continually develop ongoing innovation to our Products through updates and upgrades that offer new features, functionality, and efficiencies (“Enhancements”).   Some, but not all Enhancements, will be provided at no additional charge. We also reserve the right to add new Products and to replace or discontinue Products at any time.

Software is Licensed.  Datto Software, as incorporated into any Product, is licensed, not sold. Except for the limited rights granted herein and in the applicable Product 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.

Restrictions.  You may not nor may you authorize any third party to: (i) copy or modify the Products, or make derivative works of  the Products; (ii)  reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent this restriction is expressly prohibited by applicable law; (iii) use any Product to build a similar or competitive product or service; (iv) use any device or software that damages, interferes with or disrupts a Product; or (v) use the Products in a manner inconsistent with the Specifications, Policies, Product Terms of Use, this Agreement or Applicable Law.

MARKETING AND TRADEMARKS

Promotion.  You agree to actively market, promote and sell the Products to Content Owners in the Territory, including by listing Datto in your marketing materials and on web sites that show your third party service providers, and by cooperating with us in creating sales leads and marketing opportunities.

Your Responsibilities. You agree (i) to conduct your business in a professional manner that reflects favorably on us and the Products; (ii) not to make any representations, warranties, or claims about Datto or the Products other than presenting our current Marketing Materials or as pre-approved by us in writing; (iii) not to use deceptive, misleading, illegal, or unethical practices in your business or in marketing and reselling the Products; and (iv) to keep us informed as to any problems encountered with the Products.

License to Marks. We hereby grant you a non-exclusive, non-transferable, royalty free, revocable, non-sub-licensable license during the Term to use, reproduce, and display the Datto Marks in the Territory subject to the terms of this Agreement, and any Datto Trademark Guidelines, solely for the purposes of marketing and reselling the Products. The goodwill derived from your use of any Datto Marks exclusively is for our benefit and belongs to us. You may not represent yourself as Datto nor may you use the Datto Marks, or any other mark that may be deemed confusingly similar to a Datto Mark, in a manner that would imply our affiliation with, endorsement of, or sponsorship of you or to otherwise suggest that you are more than an independent authorized reseller of the Products.

General Trademark Obligations and Restrictions. You will not (i) challenge the validity of our rights and title to the Datto Marks; (ii) claim any right, title, or interest in or to Datto Marks; (iii) register or apply for registration of Datto’s Marks or any confusingly similar mark; or (iv) use Datto Marks anywhere in the world except as specifically permitted under this Agreement.

ORDERS & PAYMENT

Section Applies to Direct Orders. This Section 4 applies to you only when you purchase Products directly from Datto. If you purchase Products through a distributor or other master reseller, you will place orders and pay all fees for Products to such distributor or master reseller according to the terms and at the prices agreed between you and such distributor or master reseller.

Ordering Products. When you place an order for a Product the terms of this Agreement, and not any of your pre-printed terms (such as standard terms and conditions attached to your purchase order) will govern the order and any of your pre-printed terms will be null and void.  You may place an order directly through an Online Portal, or by electronically confirming any phone, electronic or written quote, order or invoice we place or enter on your behalf.

Price and Payment. Prices for Products are determined on a jurisdiction by jurisdiction basis and are, unless quoted separately by us in writing, set forth in an Online Portal. We reserve the right to change our prices at any time.  Our standard payment terms apply unless we expressly authorize different terms in writing. You agree to pay all charges applicable to the Products ordered by you including, but not limited to, monthly recurring Service subscription charges, and any additional usage based charges, including data overage or additional user charges.  Fees and payments will be calculated by us solely based 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 (including shipping, and handling) unless otherwise quoted.

Order Acceptance. Your receipt of an order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We may at any time after receipt of your order accept or decline your order, or elect to supply less than the quantity you ordered, for any reason. We may require additional verifications or information before accepting any order. Your order will be deemed accepted by us upon our delivery or registration confirmation of the Products you ordered. Any delivery date we provide is an estimate only and we will not be liable for failure to meet any estimated delivery date. All sales of Products are subject to our then-current return policies, as posted on an applicable Online Portal. Any pricing errors, unintentional misrepresentations of Product availability or features (“Errors”) will be corrected by us as soon as practicable following discovery. We reserve the right to revoke any quote, cancel any order or adjust amounts due, as applicable, where Errors affecting an order are discovered. Our sole obligation if we cancel an order due to Error will be to refund any amount already paid.

Title; Risk of Loss. 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.

Shipments Made to Certain Jurisdictions. When you order Products for delivery outside of jurisdictions in which we operate, you may be subject to import duties and taxes, which are levied when the Product arrives at the destination that you specified or the Product is otherwise received.  Any charges for customs clearance are your responsibility, as we have no control over such charges and cannot foresee the amount charged (if any).  Since customs policies vary from country to country, you should contact the customs office in the country where you have us ship Products to get more information.  You are considered the importer of record and must comply with all laws and regulations of such jurisdiction.

Payment Information and Authorization. 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. You represent (i) that the Payment Method and related information is valid, accurate, current, and complete, and (ii) you will maintain and promptly update the Payment Method and related information in order to keep it valid, accurate, current, and complete.  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.

Term Commitments. Certain Products require a commitment to a minimum Service subscription term (“Committed Service Term”). A Committed Service Term can’t be transferred apart from the individual Product to which it applies.  If you purchase a Product that involves a Committed Service Term, you agree to either pay in advance in full for the entire Committed Service Term or hereby authorize unconditional consecutive monthly payments throughout the entire Committed Service Term to be charged to your authorized Payment Method.  At the end of a Committed Service Term, the same Service will continue indefinitely on a month to month basis at our then current fees until cancelled by you.  If you cancel Service prior to the end of the Committed Service Term, a lump sum payment equal to the product of (i) the monthly amount for the terminated Service and (ii) the number of unpaid months remaining in Committed Service Term will become immediately due and payable and will be charged to your Payment Method.  You will not be eligible for a pro-rated refund of any prepaid fees if you cancel Service during a Committed Service Term.  Notwithstanding your cancellation, upon your request, we will continue to provide the Service to you for the remainder of the paid Committed Service Term.

Collection of Fees. All amounts payable by you will be made without setoff or counterclaim, and without any 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 Datto Services, including access to Products and Content or the right to continue to purchase new Products or use Products already purchased hereunder until payment is made in full.

Resale Price and Payment. You have sole discretion to establish prices at which you resell and distribute the Products to Content Owners and you will manage and be responsible for billing and collection of all Content Owner accounts.  All amounts payable under this Agreement are solely your obligation and are not contingent upon your receipt of any amounts payable to you by a Content Owner.

Taxes. You will pay and be solely liable for all taxes including sales, use, excise and any other taxes, duties or charges with respect to our sale of the Products to you, but excluding taxes based on our net income or gross receipts and taxes from which you are exempt by law as shown by a valid tax exemption certificate. You agree to indemnify and hold us harmless in the event we are required to pay such taxes, duties or other charges for which you are responsible.

PRODUCT TERMS OF USE / PRODUCT REGISTRATION / TRAINING

Product Terms of Use. Use of all our Products is subject to the applicable Product Terms of Use.  You may resell or distribute the Products only pursuant to such applicable Product Terms of Use.

Direct Use by Content Owners. You must cause each Content Owner that will directly use or support a Product to agree to the applicable Product Terms of Use, either as part of the Product registration process or prior to the Content Owner being allowed access to the Product or an applicable Online Portal for the Product.  We may specify procedures by which the Content Owner should gain access to the Product, including provision of any access codes, technical specifications, connectivity standards or protocols, or any other relevant procedures.

Use by You.  If you use any Product for your own internal use, for testing or promotional purposes, or as a Product Administrator, you accept and agree to the applicable Product Terms of Use.

Content Owner Terms.  If you act as a Product Administrator you must ensure that the Content Owner for each Product 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.

Business Associate Agreements. If you act as a Product Administrator managing or using certain Products 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 applicable 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).

Support Obligations. You agree to provide Content Owners with support as may be detailed in any Product support obligation guidelines, including, resolution of pre-sales questions, setup, integration, post-sale inquiries, basic support, problem screening, and basic diagnostics.

Notice of Breach. You agree to immediately notify us of any known or suspected breach of any Product Terms of Use or any other unauthorized use of the Products and to assist us in the enforcement of the same.

Training. You agree to participate in any training programs as may be required by us from time to time in order to maintain your reseller status.   Our training (through any written or visual presentation) provides instruction on the general use and functionality of the Products but is not the same, and you should not rely on it, 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.

CONFIDENTIALITY

Protection of Confidential Information.  For purposes of this Agreement, Content will not be considered the Confidential Information of either Party and the provisions of this Section 6 will not apply to Content. Each party will (i) maintain the confidentiality of the Confidential Information of the other party (and that of any third parties to which either party has access as a result of this Agreement); (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except to the extent necessary to perform its obligations under this Agreement  (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 performing its obligations under this Agreement; and (v) promptly return, or provide a copy of, as the requesting party directs, Confidential Information upon the request of the other party.

Administrative Data.  If you are not a Product Administrator or if the Content Owner has not otherwise authorized your access, any access you may have, by means of an Online Portal or otherwise, to Administrative Data related to such Product or its use, including but not limited to, Device or Product identification, usage amount, individual user identities, or Product or account settings may be used by you only for billing and product support purposes and will not otherwise be used or disclosed by you for any purpose.

Disclosure of Confidential Information. Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors and independent contractors (collectively “Representatives”) who have: (i) a need to know such Confidential Information in order to perform their duties; and (ii) a legal duty to protect the Confidential Information. A party receiving Confidential Information of the other party assumes full responsibility for the acts and omissions of its Representatives with respect to such Confidential Information.

Required Disclosures. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party required to make any such disclosure, where legally permissible in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the other party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.

Notification. Except for any disclosure permitted under section 6.3 above, in the event of any disclosure or loss of Confidential Information, the receiving party will notify the disclosing party as soon as possible.

Injunctive Relief. Each party acknowledges that any breach of any provision of this Section 6 (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.

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 termination of this Agreement.

TERM AND TERMINATION

Term. This Agreement will commence on your acceptance of this Agreement by electronic or written means and continue until terminated in accordance with the provisions of this section (the “Term”).

Termination for Convenience.  We may terminate this Agreement, at any time, without cause, upon 30 calendar days written notice. In addition, we may terminate providing a particular Product, at any time, without cause, upon 30 calendar days written notice, without terminating this Agreement.

Termination for Breach. Each party will have the right to terminate this Agreement upon notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within ten (10) days after receiving written notice thereof. Notwithstanding the above, we may terminate this Agreement immediately for cause for any violation by you of Section 2 (Reservation of Rights/Limitation Regarding Products) or Section 12 (Compliance with Laws).  We may also terminate this Agreement immediately upon notice to you if you if disparage us or our Products or engage in abusive or threatening conduct or communications toward us or about us.

Effect of Termination. Immediately upon either of us serving the other with notice of termination, you may not order or sell any additional Products without our express written consent and we reserve the right to terminate your Online Portal access. Upon termination, (i) any amounts you owe to us will be immediately due and payable; (ii) all rights and licenses granted hereunder will terminate and you must cease the use, marketing and distribution of the Products and Datto Marks and may not represent yourself as a reseller of or affiliated with Datto in any manner. Both parties will immediately cease use of all Confidential Information of the other party and will use commercially reasonable means to irretrievably delete or remove such items from all computer hardware and storage media, including backups.

No Effect on Use of Products. Termination of this Agreement does not affect any of our rights with respect to Content Owners’ use of the Products that were purchased from you or for which you acted as Product Administrator. We may continue to provide the Products to such Content Owners, including Datto Services with respect to Content, following termination of this Agreement. We may assume your role with respect to such Content Owners and/or may assign such Content Owners to a different Datto reseller.  You agree to provide us with all Content Owner and Product information that may be needed to effect the intent of this section. Notwithstanding the above, all Committed Service Terms will survive termination of this Agreement unless otherwise agreed by the parties.

To the extent that termination of this Agreement also leads to termination of Datto Services or if Datto Services are terminated otherwise, we reserve the right to permanently delete or disable access to all related Content from any remotely located servers owned by us or under our control, without liability for such deletion, 60 days after the termination of such Datto Services.

Survival. Notwithstanding anything to the contrary, the following provisions will survive termination of this Agreement: those that by their express terms survive or by their nature may be reasonably inferred to survive, as well as sections 4, 6, 7, 8, 9, 10.2, 11, 12, 13, 14 and 15.

WARRANTIES

Mutual Warranties. Each party represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of its place of incorporation or formation; (ii) it has the authority to enter into this Agreement and to perform its obligations and grant the rights and licenses provided herein; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.

Limited Datto Hardware Warranty. Warranty terms for physical hardware Products provided by Datto are found on an Online Portal.  We have no warranty obligations with respect to any products we may sell that are developed by third parties.

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.

THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS 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.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER.

No Revenue Guarantee. You acknowledge and agree that we make no promise or guarantee that you will obtain or receive any minimum revenue or profit as a result of this Agreement or selling the Products.

LIMITATIONS AND EXCLUSIONS OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL WE OR OUR LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTIES 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, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.

TO THE FULLEST EXTENT ALLOWED BY LAW, OUR TOTAL LIABILITY (AND THAT OF OUR SUPPLIERS/LICENSORS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO DIRECT DAMAGES ONLY IN AN AMOUNT EQUAL TO THE FEES RECEIVED BY US  RELATED TO THE INDIVIDUAL CONTENT OWNER, ACCOUNT OR PRODUCT, IN  THE 12 CALENDAR MONTHS PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY; PROVIDED THAT IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES YOU PAID TO US FOR ALL PRODUCTS IN ANY 6 CALENDAR MONTH PERIOD.

THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

Essential Basis. You acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in Sections 8 and 9 form an essential basis of this Agreement and have been relied on by both of us, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement and the fees applicable to the Products would be substantially different.

INDEMNIFICATION

Indemnification by Datto. We agree to defend you from and against third party claims that a Product or Datto Mark in the form supplied to you under this Agreement infringes or misappropriates a third party’s patent, copyright or trademark rights in the Territory 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 or Datto Mark with other products, services, software or marks if the infringement could have been avoided by the use of such Product or Datto Mark not in such combination; (ii) any modifications to the Product or Datto Marks not made by us; (iii) any damages incurred as a result of your  failure to use any update to the Product or Datto Marks 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 or Datto Mark is or may be subject to an infringement claim, we may, at our option: (1) procure for you the right to continue distributing the Product in accordance with this Agreement 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 this Agreement or your ability to further distribute such Product upon written notice to you.  This Section 10.1 represents your sole and exclusive remedy and Datto’s sole and exclusive liability for any infringement claims based on the Products or Datto Marks.

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 this Agreement; (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 10.1;  (iv) 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 information or Confidential Information in accordance with this Agreement, any applicable agreement with a Content Owner, any applicable Business Associate Agreement, and Applicable Law.

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.

AUDIT/EXPENSES

Audit. You will retain all records and documentation with regard to your compliance with this Agreement throughout the Term and for 3 years thereafter. At all reasonable times during the Term and such subsequent 3 year period we or our duly authorized representative will be permitted access to such records and documentation for purposes of auditing and verifying compliance with this Agreement, upon 5 business days prior written notice, during your regular business hours.

Costs and Expenses. Except as expressly stated, each of us will bear all costs and expenses incurred in performing our respective obligations under this Agreement, including expenses related to marketing of the Products, and you are not entitled to receive any fees, commissions, or other payments for the performance of your obligations.

COMPLIANCE WITH LAWS

All Applicable Laws.  You represent, warrant, and covenant that in the performance of this Agreement, you will comply, and will cause all Reseller Parties to comply with all Applicable Laws and regulations related to your activities under this Agreement.  You will not cause us or our affiliates to be in violation of any Applicable Laws or regulations.  You will respond to our requests for information, to the extent reasonable and related to our efforts to ensure compliance with Applicable Laws and regulations.

Subcontractors.  You may not retain any third-party broker, agent, subreseller, or other contractor to interact with Officials or Content Owners in the performance of your obligations under this Agreement, unless such third party is vetted and approved by us in writing or otherwise in accordance with standards approved by us in advance.  We may withhold or withdraw such approval in our sole discretion.

Compliance and Required Permits.  You will obtain all licenses and approvals and other authorizations required and will otherwise comply with all laws governing the importation or distribution of the Products into and throughout the permitted Territory and will pay (and reimburse us if we are required to pay) all related governmental charges and related expenses.

Authorizations. You will at your own expense, make, obtain and maintain in force at all times during the term of the Agreement, all reports, licenses, permits and authorizations required to perform your obligations under this Agreement.

Export Compliance. You represent and warrant that you: (i) will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority in the Territory; (ii) will not export or re-export or allow the export or re-export of the Products, or any Content through use of the Products, in violation of any such export laws, restrictions, controls or regulations.  Without limiting the generality of the foregoing, each party agrees that it does not intend to nor will it, directly or indirectly, engage in any export or re-export of the Products or services to (i) any territory that is subject to a U.S. economic embargo, including, but not limited to, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea, or to any national of any such territory, wherever located, (ii) to any entity or individual who such party knows or has reason to know is engaging in the design, development or production of nuclear, chemical or biological weapons, or missile technology, or (iii) to any entity or individual who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government, including the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Bureau of Industry and Security, a consolidated version of a list of such prohibited persons is available at http://export.gov/ecr/eg_main_023148.asp.  We reserve the right to refuse sales of Products, or to terminate the provision of Services, to any Content Owner if the provision of Products or services to such Content Owner is prohibited under Applicable Law.

Corrupt Practices. You will and you will cause all Reseller Parties to comply with all applicable laws, statutes, regulations and sanctions relating to anti-bribery and anti-corruption compliance, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 as amended (the “FCPA”), any guidance issued by the U.S. government from time to time regarding the FCPA, the United Kingdom Bribery Act 2010 (“UKBA”), any guidance issued by the UK government from time to time regarding the UKBA, and other applicable anti-corruption, anti-fraud, embezzlement, anti-money laundering, and anti-terrorist financing laws and regulations (collectively, “Anti-Corruption Laws”).  You will not, with a corrupt, improper, or illegal intention, directly or indirectly, offer, promise, authorize, pay, give, solicit, or accept any money, favor, advantage, bribe, kickback, or anything else of value to or from an Official or any other individual or entity, whether in the public or private sector, for purposes of obtaining, retaining, or directing business, regulatory approvals, or any other improper advantage.    Further, you will not, directly or indirectly, offer, promise, authorize, pay, give, solicit, or accept a financial or other advantage to induce the improper performance of a relevant function or activity, as a reward for the improper performance of a relevant function or activity, or with the knowledge or belief that the acceptance of the financial or other advantage would itself constitute an improper performance of a relevant function or activity.  Neither you, nor to  your knowledge, any of , your affiliates’ respective owners, officers, directors, employees, subresellers, subcontractors, members, partners or managers or, to your knowledge, any immediate family member of the foregoing persons (collectively, “Interested Persons”) is an Official or a potential customer  who has not otherwise been disclosed as such  to us in writing.  You will notify us promptly if (i) an Interested Person becomes an Official or (ii) an Official becomes an Interested Person or acquires a personal interest in your income.

Developments.  You will use your best efforts to promptly advise us in writing of any statute, regulation or other law in the Territory that is not the United States, if applicable, that is or comes into effect during the term of the Agreement and that affects the importation, exportation, sale promotion, provision or protection of the Product or services or which otherwise has a material effect on the parties’ rights or obligations under the Agreement.

Government Registration.  If any approval or registration of this Agreement (“Required Registrations”) is required, either initially or at any time during the Term, in order to give the Agreement legal effect within any jurisdiction in the Territory, or with respect to exchange regulations or requirements so as to assure the right of remittance abroad of sums due to us, you agree, at your sole expense, to take whatever steps may be necessary to secure such Required Registrations, immediately and prior to commencing within any jurisdiction in the Territory any activities which are subject to such approval or registration.

Policies/Procedures.  You will maintain and comply with policies and procedures which are (i) substantially consistent with the foregoing representations, warranties, covenants and certifications, and (ii) in compliance with all Applicable Laws and regulations applicable to you and us, including, but not limited to, the laws described in this Section 12.

Notification and Cooperation.  You have  in good faith provided to us and/or our agents and advisors all documents and information of the character and type requested by us in writing in the course of any corporate and anti-corruption due diligence review of you.  You will immediately notify Datto if you have any information or suspicion that there may be a violation of Applicable Laws or regulations, including, but not limited to, the laws described in this Section 12, in connection with this Agreement.  You will reasonably cooperate with us in regard to any matter, dispute, or controversy related to this Agreement and in which we may become involved and of which you may have knowledge.  Such obligation will continue after the expiration or termination of this Agreement.

ARBITRATION; CLASS ACTION WAIVER

Arbitration / No Class Action.  All claims and disputes arising out of this Agreement, 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.

Claims Not Subject To Arbitration.  Notwithstanding the foregoing section, 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; (iii) your breach of any Product Terms of Use; (iv) any collection claims; and (v) any claim for temporary or permanent injunctive relief.

Courts.  In any circumstances not subject to mandatory arbitration, we each hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 14.4.

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.

ADDITIONAL PROVISIONS

Nature of Relationship. Each of us enters into this Agreement as an independent contractor and neither of us may act or represent ourselves as an agent, partner, or joint venturer of the other.

Government Contracts. If the Products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding on us unless we specifically agreed in writing.

Construction. The section headings in this Agreement are for convenience of reference and will not be deemed to be a part of this Agreement. Any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of this Agreement.

Governing Law. This Agreement, 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.

Enforceability.  If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.

Electronic Communications.  You consent to receive communications from us in electronic form and agree that all agreements, including this Agreement, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement as if in writing.

Assignment. You may not assign this Agreement 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.

Force Majeure. Any delay in or failure of performance of either of us (excluding obligations to pay for Products) will not constitute a default under this Agreement or give rise to any claim for damages to the extent such delay or failure of performance is caused by an event beyond our control.

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.

No Third Party Beneficiaries.  There are no third party beneficiaries to this Agreement.

English Language. This Agreement has 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.

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 Online Portal account or the billing contact you provide. 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 your Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.

Remedy. The rights and remedies of the parties will be cumulative (and not alternative). In the event of any litigation between the parties relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and court costs from the other party.

Entire Agreement. This Agreement, and all Policies and third party resale or other applicable terms on any Online Portal, together 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. Any inconsistent or additional terms contained in any of your purchase orders, sales confirmations or any other communications are deemed material changes which we hereby expressly reject. Our fulfillment of any order will not constitute acceptance of any such additional or inconsistent terms and conditions.

Updates to this Agreement.  We may update this Agreement from time to time.   We will notify you of changes by posting the updated Agreement on the appropriate Online Portal and/or by sending a message to the primary account user for your organization.  You are responsible for checking the Online Portal regularly and for maintaining a current electronic address for your account so we may notify you of important updates.  The updated Agreement will be effective 30 days from our notice unless you notify us that you object within such 30 days.  By continuing to participate as a reseller without objection after such 30 day period, you agree to comply with the updated Agreement.  We will identify the date we last modified this Agreement at the beginning of this Agreement.

DEFINITIONS

“Administrative Data” means data concerning registration, use and administration of Products that may be available to reseller through an Online Portal or otherwise.  Administrative Data does not include Content.

“Applicable Laws” means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by this Agreement.

“Confidential Information” means any information, other than Content, whether oral, written, electronic, or in any other format, regarding this Agreement, the Products, services, Intellectual Property Rights, pricing, discounts, marketing and business plans, Beta Products, Online Portals, other information not generally known to the public and any other information received under circumstances reasonably interpreted as imposing an obligation of confidentiality; provided that, “Confidential Information” does not include any information that: (i) was publicly available at the time of disclosure; (ii) became publicly available after disclosure through no fault of the receiving party; (iii) was known to the receiving party prior to disclosure by the disclosing party; or (iv) was rightfully acquired by the receiving party after disclosure by the disclosing party from a third party who was lawfully in possession of the information and was under no legal duty to the disclosing party to maintain the confidentiality of the information.

“Content” means data, content or other materials stored, backed-up, hosted, displayed, transmitted, routed, virtualized, processed or communicated using a Product.

“Content Owner” means the person or entity that a) purchases and has use of a Product; and b) owns, licenses, lawfully controls or uses Content, or for whose benefit Content is held or transmitted, in connection with any Product.  Content Owner may also be referred to in certain Product Terms of Use or Online Portals as Customer, End User, Account Owner, Network Owner or Client.

“Content Owner Terms” means terms related to certain Products that must be included in a valid, enforceable contract between a reseller and Content Owner when that reseller acts as a Product Administrator of a Product for the benefit of the Content Owner and the Content Owner does not itself directly access or use the Product.

“Datto Marks” means Datto’s trademarks, service marks, trade names, brands, domain names, URLs, logos and other proprietary indicia (whether or not registered).

“Datto Services” means all services provided by or on behalf of Datto, including without limitation, the business continuity, backup, disaster recovery, routing, file sharing, networking, technical support, training, Online Portals or other applications. 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 by or under the control of the Content Owner or reseller; (ii) the use of remotely located servers under the control of Datto (“Datto Cloud”); (iii) the use of Datto Software licensed for use by Content Owner or reseller; and/or (iv) enrollment in and use of a Software as a Service (SaaS), file sharing or other subscription-based offerings.

“Datto Software” means software technology and other Intellectual Property Rights of Datto and its licensors in or comprising any Product, including any embedded software on or comprising Devices.

“Device” means any (i) storage or backup and disaster recovery product instance, regardless of whether it is physical hardware, virtual or imaged form; (ii) any networking product instance.

“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.

“Marketing Materials” means press releases, advertising materials, and any other items or information in any medium provided by or on behalf of Datto for use by Reseller in promoting the Products.

“Official” means (i) a director, officer, employee, contractor, or agent of any government, military, or state-owned or affiliated entity or organization; (ii) any department, agency, corporate entity, instrumentality or political subdivision of any government or military; (iii) any person or commercial entity acting in an official capacity for or on behalf of any government or military; (iv) any candidate for political office, any political party or any official of a political party; or (v) any officer, employee, contractor, or agent of any public international organization such as the United Nations or the World Bank.

“Online Portal” means any web-based application or portal provided by Datto that contains information related to the purchase, use, support and/or resale of the Products.  Different Products may have different Online Portals and certain Datto affiliates may have separate Online Portals.

“Policies” means the policies established by Datto applicable to the purchase, access, use, management and support of the Products.

“Products” means any product made available by Datto, including Datto Services, Devices, Datto Software, as well as all Enhancements and Specifications related to all of the foregoing, that a reseller is authorized to promote, resell and distribute according to the terms and conditions of this Agreement.

“Product Administrator” means a third party other than Datto authorized by a Content Owner to control, manage, support and/or use a Product for the benefit of that Content Owner.  For purposes of this Agreement, a Product Administrator does not include a user of a Product that is authorized by the Content Owner to have administrative responsibilities (for example, an account administrator authorized by a Datto Drive account owner).

“Product Terms of Use” means the terms and conditions applicable to the use of each Product.  Different Products may have different Product Terms of Use.

“Reseller Party” means reseller or any of reseller’s employees, officers, directors, agents, subcontractors, suppliers, vendors or independent contractors.

“Specifications” means the Policies, documentation, user manuals and any technical publications and materials, as applicable, made available by Datto relating to the Products.  Specifications may be published on an Online Portal.

“Territory” means the geographic area in which a reseller is authorized to market and resell the Products.  Except where indicated otherwise in the applicable Product Terms of Use, Territory includes any location where reseller maintains the personnel and infrastructure necessary to comply with its obligations under this Agreement, but in no event will Territory include any jurisdiction where any sale or use of the Products is prohibited by applicable law.

July 2017