Terms of use

Datto Business Continuity and Disaster Recovery (BCDR) Products

BCDR PRODUCT TERMS OF USE
Last modified May 2018

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

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

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

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

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

  1. USE OF PRODUCTS

    1. Right to Use.  Subject to these Terms of Use and the receipt by us of all fees applicable to the Product, Datto grants you a limited, revocable, non-sublicensable, non-exclusive right and license to access and use the Product in accordance with the Product Specifications.  If you are a Content Owner, you may use the Product solely for your internal business purposes.  If your use of the Product involves the use of backup agent software, you hereby agree to the terms of all applicable Agent Software Licenses.  

    2. Ongoing Payment Requirement.  The continued right to use a Product requires that it be enrolled in a Service Subscription and we continue to receive payment with respect to such use.  If a Product is not properly registered in a current paid Service Subscription we have no obligation to allow access to or use of the Product, nor to provide any related Services.  

    3. Limited Rights.  Datto Software is licensed, not sold. Except for the limited rights granted in these Terms of Use, we and our licensors retain all right, title, interest and Intellectual Property Rights in Datto Software and Services, and all copies thereof.   The Products contain material that is protected by copyright, patent and trade secret law of jurisdictions throughout the world, and by international treaty provisions.   All Intellectual Property Rights and other rights in and to Products not expressly granted under these Terms of Use are expressly reserved by us and our licensors.

    4. Third Party Technology.  Certain Products may involve or allow the use of third party technology, the use of which is subject to such third parties’ license terms.  These terms are located under the heading "Third Party License Terms" on the Online Portal.  You agree that your use of a Product is deemed your express consent to all such applicable Third Party License Terms.  As to all such third party technology: (i) it is provided by us on an "AS IS" basis, without warranty of any kind and (ii) we will not be liable for damages of any kind, including direct, indirect, incidental, special, exemplary, punitive, or consequential damages, nor will we indemnify you for any claims related to any third party technology.   Except as may be provided in the Third Party Terms, or in any separate agreement between you and the provider of the applicable third party technology, your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the third party technology is to cease its use.

    5. Beta Products.   We may designate enhancements to a Product or a new Product as "Beta Product." Such Beta Product will not be ready for use in a production environment and its operation may be unpredictable and lead to erroneous results.  You are under no obligation to use a Beta Product.  If you choose to use a Beta Product, you agree the Beta Product (i) is experimental and has not been fully tested; (ii) may not meet your requirements; (iii) use or operation may not be uninterrupted or error free and is for  purposes of evaluating and testing the product and providing feedback to us.  You agree to report promptly to us any errors or other deficiencies in the Beta Product and will hold all information relating to use and performance of the Beta Product in strict confidence and not disclose such information to any unauthorized third parties. Use of any Beta Product is otherwise subject to these Terms of Use.  NOTWITHSTANDING ANY OTHER 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.

    6. 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.  

    7. Additional Data Processing Terms. Certain Products may be configured to designate the geographic region where Content associated with a Product is stored. The European Data Processing Addendum is incorporated into these Terms of Use if a Product is configured to store Content in the European Economic Area.

  2. LIMITATIONS ON RIGHTS OF USE

    1. General Restrictions.   You may not nor may you permit, facilitate or authorize any third party to:  (i) use any Product other than as permitted under these Terms of Use; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in any Product or its Specifications; (iii) access or use any Product in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt such Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from any Product, except to the extent that this restriction is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of any Product; (vi) alter any disabling mechanism which may reside in a Product; (vii) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Products, or directly or indirectly permit any unauthorized third party to use or copy the Product; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Products; (ix) extract portions of the Datto Software or Device files for use in other applications; or (x) access any Product to (1) build a competitive product or service; (2) copy any, or build a product using, similar ideas, features, functions, or graphics of the Product.

    2. Limitation on Product Use/Content.  Use of the Products and Content must at all times be in compliance with all Applicable Laws.  The Products and Content may not (i) be used to send any unsolicited commercial email or invitation; (ii) be used to request, collect, store, transmit or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any applicable privacy law or regulation; (iii) be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libelous, defamatory, slanderous, or otherwise in violation of Applicable Law; (iv) infringe or misappropriate any Intellectual Property Rights or other rights of any third party; (v) be used in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any Applicable Law; (vi) contain or be used to  transmit or otherwise make available any viruses or similar malicious software that may damage the operation of any computer, network, system or the Products; (vii) violate the terms of any license agreement or other agreement or terms of use to which the Content Owner, Product Administrator or Content is subject; or (viii) be used to send materials to individuals under the age of majority in his or her place of residence ("Minors"), or to harm Minors in any way, or that would subject us to any Applicable Law governing children's privacy or otherwise related to protecting Minors.  

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

    4. Certain Uses Not Supported.  Use of the Products is not authorized, will not be supported by us, and any warranties will be void, if the Products are modified in any way or used in a manner for which they are not intended, including but not limited to (i) using software or hardware that is not intended, recommended or approved by us for the Product;  (ii) installing a different operating system (OS) on a hardware Device; (iii) except for a limited testing period or in the event of a documented business continuity event, using a Product in a virtualized production environment instead of as a backup application; or (iv) use, access and support of any Product by other than authorized personnel who are knowledgeable about the Product, Service and Content involved and are able to demonstrate the required level technical competency with respect to the use of the Product.

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

  3. RIGHTS AND RESPONSIBILITIES REGARDING CONTENT

    1. Content Owner Rights and License to Content.  On behalf of or as the Content Owner, you (i) represent and warrant that the  Content Owner has sufficient rights and all third party consents, permissions or licenses in and to the Content as may be necessary and appropriate for use of the Content with the Products; and (ii) hereby grant to Datto a limited, royalty-free, non-exclusive, assignable license  to copy, reformat, disclose, transmit, display and otherwise use the Content as necessary or desired,  in each case solely for the purposes of providing the Product or Service or as otherwise necessary  for  Datto to exercise its rights under these Terms of Use.  

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

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

    4. Business Associate Agreements. If you are a third party Administrator managing or using a Product for a Content Owner that is a Covered Entity or Business Associate, as defined under U.S. law, you agree to enter into and comply with the terms of an applicable Business Associate Agreement with the Content Owner.  Furthermore you agree to notify us in such event so that you and we may enter into a valid Business Associate Agreement prior to the transfer of any Content related to the Product.  Upon our request you agree to send us a copy of each such Business Associate Agreement between you and the Content Owner.  The terms "Covered Entity," "Business Associate" and "Business Associate Agreement" will have the same meanings as set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).

    5. Datto’s Use of Content.  Except for the limited license granted hereunder, Content Owner retains all of its existing rights in and to Content.  We will use the Content only as necessary to provide and support the Products and will not otherwise access Content other than as permitted under these Terms of Use, as described in our Privacy Policy, or as authorized by an Administrator for support.  

  4. MAINTENANCE, SUPPORT AND TRAINING

    1. Datto’s Maintenance and Support. We will provide reasonable support for the Products in accordance with our then-current maintenance and support Policies, and any applicable Service Level Agreement located on an Online Portal, as the same may be updated by us from time-to-time.  

    2. Your Support. An Administrator is responsible for providing first level support for each Product. By requesting support services directly from us, you represent that you are authorized to do so for that Product and are knowledgeable about the Product, Service and Content involved and are able to demonstrate the required level of technical competency with respect to use of the Product. We reserve the right not to provide direct support to any individual not meeting these requirements.

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

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

  5. TERM AND TERMINATION

    1. Term. These Terms of Use will apply to you and your right and license to use a Product will commence at the earlier of when (1) you purchase and/or register the Product; and/or (2) you are authorized to be an Administrator of a Product, and continue in effect with respect to that Product until terminated as set forth in this Section 5. The right and license of any third party Administrator to use a Product continues only as long as such Administrator continues to be authorized to act on behalf of the Content Owner.

    2. Termination. Without prejudice to any other of our rights, we may terminate your right to use a Product and the provision of any Service, in our sole discretion, on 10 calendar days’ notice if you fail to comply with these Terms of Use, or if there is a failure to pay any fees due to us for use of the Product and there is a failure to cure such breach within the notice period.  We may terminate immediately in the event:  (a) there is any breach of Section 1 (Use of Product), Section 2 (Limitations on Rights of Use), or Section 9 (Confidentiality); or (b) there is or we reasonably believe there may exist a basis for a claim of Intellectual Property Rights infringement by any third party relating to the Product.

    3. Effect of Termination. In the event of termination for any reason you must immediately stop using the Product and securely destroy all related media and Specifications, if any. The licenses granted hereunder and all Services with respect to a given Product will automatically terminate on expiration or termination under this Section 5. We reserve the right to permanently delete or disable access to all related Content from any remotely located servers owned by or under our control, without liability for such deletion, 60 days after the termination.

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

  6. ACCESS AND SECURITY

    1. Your Responsibility for Account and Product Access. You are responsible for any action that you permit, assist or facilitate any person or entity to take related to the Product and associated Content. You are responsible for the security of all access credentials, including all passwords, to the Product.  You are responsible for maintaining the security of any access codes, passwords, technical specifications, connectivity standards or protocols, assigned to you and/or created by you to gain access to an Online Portal, Product and/or Content. You are responsible for all activities that occur in your Online Portal account ("Account"), including any Product or Content access you allow, regardless of whether the activities are undertaken by you, by others on your behalf (including any of your administrative users and/or any Content Owner you authorize). Your Online Portal account may be hosted in the U.S. regardless of where you, the Product or Content related to the Product may be located. You are responsible for securing any necessary consents, if any, related to the hosting location of your Online Portal account.  If you lose your encryption key, you may not be able to access the Content associated with the Product.  You agree to notify us immediately if you learn of any unauthorized use of any access credentials or any other known or suspected breach of security. You agree that we will not be liable for any loss of any kind resulting from a) any party using your Account access credentials;  and b) activity within your Account, either with or without your knowledge or authorization.

    2. Your Responsibility for Security.  You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to access to and use of the Product and Content.  In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to local Device access, network connectivity and internet connectivity.  We use physical, technical and administrative safeguards designed to secure Content under our control against accidental or unauthorized loss, access or disclosure.  However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities and you use the Products with all Content at your own risk.

  7. UPDATES AND TESTING

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

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

    3. Changes to Terms of Use/ Policies/Specifications.  We reserve the right at any time to modify these Terms of Use and updated Terms of Use will be posted within the applicable Product or Online Portal.  We will make reasonable efforts to notify you of material changes and your continued use of any Product after an update will indicate your acceptance of any updated Terms of Use.  If you do not agree to any updated Terms of Use, you must terminate your use of the Product  immediately.  If you provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the Product.   We may also modify and update Policies, Third Party License Terms, Specifications, and other support materials.  All such changes are effective immediately upon posting to the Online Portal and you should review such materials on a regular basis so that you will be apprised of any changes.

  8. USE OF  INFORMATION

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

    2. Use of Aggregate Data.  Notwithstanding anything else in these Terms of Use or otherwise, we may evaluate and process use of Products and Content in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as "Aggregate Data"). We may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to our business.  We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any Administrator or Content Owner.  

    3. Use of Log Data.   Operational data concerning use of the Products, including but not limited to, information servers automatically record relating to the access and use of the Products, such as IP address, authentication tokens, machine identification, access logs, device settings and Online Portal settings are used by us to provide the Products and operate our business and you agree that we may use such Log Data for such purposes.

  9. CONFIDENTIALITY

    1. Protection of Confidential Information. Both you and we agree to (i) maintain the confidentiality of the Confidential Information of the other party; (ii) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party except as necessary for the purpose of using or providing the Products or otherwise in complying with these Terms of Use; (iii) use the same care to prevent disclosure of the Confidential Information of the other party to third parties as it employs to avoid disclosure of its own information of a similar nature, but in no event less than a reasonable standard of care; (iv) use the Confidential Information of the other party solely for the purpose of using or providing the Products or otherwise in complying with these Terms of Use.  

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

    3. Types of Data. Content, Feedback, Aggregate Data and Log Data will not be deemed to be Confidential Information. Our responsibilities regarding Content are set forth in Section 3.4. Our use of Feedback, Aggregate Data and Log Data are set forth in Section 8.

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

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

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

    7. Return of Confidential Information. Unless it is expressly authorized to retain the other party’s Confidential Information, a party will promptly return or use commercially reasonable efforts to destroy, at the other party’s option, the other party’s Confidential Information upon request or upon any termination of these Terms of Use.

  10. WARRANTY AND DISCLAIMER

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

    2. YOU ACKNOWLEDGE THAT THE PRODUCTS, INCLUDING ANY SERVICES, ARE PROVIDED AS IS AND WITH ALL FAULTS.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PRODUCTS WILL MEET ANY CONTENT OWNER, ADMINISTRATOR, OR USER REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CONTENT OWNER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.    

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

    4. WE DISCLAIM ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY US.  

    5. WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY COMPONENTS IN ANY PRODUCTS. WE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY COMPONENTS.   YOU SHOULD CONSULT THE RESPECTIVE VENDOR OR MANUFACTURER OF THE THIRD PARTY COMPONENT FOR WARRANTY AND PERFORMANCE INFORMATION.

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

  11. LIMITATION OF LIABILITY

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

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

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

    4. Essential Basis. The disclaimers, exclusions and limitations of liability set forth in Sections 10 and 11 and form an essential basis of these Terms of Use and have been relied on by both you and us, and absent such disclaimers, exclusions and limitations of liability, these Terms of Use and the fees applicable to the Products would be substantially different.

  12. INDEMNIFICATION

    1. Indemnification by Datto. We agree to defend you from and against third party claims that a Product in the form supplied to you under these Terms of Use infringes or misappropriates a third party’s patent, copyright or trademark rights and we will indemnify and hold you harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Datto in settlement in connection with any such claim. Our  indemnification obligations will not apply to (i) claims of infringement to the extent based on your combination of the Product with other products, services or software or marks if the infringement could have been avoided by the use of such Product not in such combination; (ii) any modifications to the Product not made by us;  (iii) any damages incurred as a result of your  failure to use any update to the Product we provide; or (iv) use of a Product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as "IP Exclusions").  If we determine that a Product is or may become subject to an infringement claim, we may, at our option: (1) procure for you the right to continue to use the Product; or (2) replace or modify the Product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate your use of the Product and will issue a refund of the fees paid (not including Service usage fees for Services already provided) to acquire the initial use of the allegedly infringing Product less reasonable depreciation.  This Section 12.1 represents your sole and exclusive remedy and Datto’s sole and exclusive liability for any infringement claims based on the Products.

    2. Your Indemnification of Datto. You agree to defend us, our licensors and affiliates, and the officers, directors, employees and representatives of each of them (each a "Datto Indemnified Party"), from and against all damages and costs incurred as a result of a third party claim and you will indemnify and hold any and all Datto Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by you in settlement in connection with any such claim, to the extent the claim arises out of (i) your breach of these Terms of Use; (ii) your negligence or other acts or omissions resulting, in whole or in part, in a third party claim being asserted against us; (iii) any of the IP Exclusions referenced in section 12.1; (iv) if you are a third party Administrator, your failure to cause each Content Owner to agree to the applicable Product Terms of Use and/or Content Owner Terms or your actions in excess of the authority granted to you by any Content Owner; (v) your  failure to secure Content, any personally identifiable or Confidential Information in accordance with these Terms of Use, any applicable agreement with a Content Owner, any applicable Business Associate Agreement, and Applicable Law.

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

  13. EXPORT CONTROL AND GOVERNMENT USES

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

    2. Government Entities. If Products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon Datto unless specifically agreed to by Datto in writing.   If the Content Owner is a U.S. Government entity or person, the Product is being provided as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted in the Product to such Content Owners are the same as the rights granted to all others under these Terms of Use.

  14. ARBITRATION; CLASS ACTION WAIVER

    1. Arbitration / No Class Action. All claims and disputes arising out of these Terms of Use or the use of any Product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association ("AAA"). Arbitration must be on an individual basis and neither of us may join or consolidate claims in arbitration or arbitrate claims as a representative or member of a class.  Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed under AAA rules for the pertinent claim.  Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award.  Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof.  Costs of arbitration (including reasonable attorneys' fees) will be made a part of the arbitrator’s award. The arbitration will take place in Fairfield County, Connecticut. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.

    2. Claims Not Subject To Arbitration.  Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration: (i) alleged infringement or misappropriation of the other party’s Intellectual Property Rights; (ii) any claims involving a party’s right to indemnification under this Agreement; (ii) your breach Section 2 of these Product Terms of Use; (iii) any claim for temporary or permanent injunctive relief.  

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

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

  15. ADDITIONAL PROVISIONS

    1. Construction. The section headings in these Terms of Use are for convenience only, will not be deemed to be substantive and will not be referred to in connection with the construction or interpretation of these Terms of Use. Any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these Terms of Use.  

    2. Governing Law. These Terms of Use, if with Datto, Inc., will be governed, construed and enforced in accordance with the laws of the State of Connecticut without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement, if not with Datto, Inc., will be governed in accordance with the laws of the jurisdiction where the applicable Datto affiliate or subsidiary is located and nothing in this Agreement will be deemed to exclude or limit the liability of either party which cannot be limited or excluded by such applicable law.  This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.

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

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

    5. Assignment. You may not assign these Terms of Use or any rights or obligations hereunder (including with respect to any individual Product or Content), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns

    6. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these Terms of Use or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of god, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.

    7. No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.

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

    9. English Language. These Terms of Use have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.

    10. Notices. All notices required or permitted hereunder will be in writing and delivered by nationally recognized overnight courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to you will be sent to you at the address specified in an Online Portal. Notices to us must be sent to 101 Merritt 7, Norwalk, CT 0685 Attn: General Counsel. In addition, we may send any notice required or permitted hereunder to you at the email address specified in an Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.

    11. Entire Agreement. These Term of Use, Third Party License Terms, any applicable backup Agent Software Licenses, and applicable Policies  available on the appropriate Online Portal constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.

  16. DEFINITIONS

    1. "Administrator" means (i) a Content Owner that controls, manages, uses and/or supports any Product for its own internal use; or (ii) a third party person or entity, other than Datto, authorized by a Content Owner to control, manage and/or use a Product for that Content Owner.    A Product may have multiple Administrators and Datto expressly may rely on the authorization and instructions of any Product Administrator that agrees to these Terms of Use, until Datto receives written instructions to the contrary.

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

    3. "Confidential Information" means any information, other than Content, whether oral, written, electronic, or in any other format disclosed by either you or Datto to the other related to the operations of either party or a third party that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure are reasonably to be treated as confidential.   Confidential Information specifically excludes Content.  The Products and information available to you through an Online Portal are Datto Confidential Information.

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

    5. "Content Owner" means the person or entity that owns, licenses, lawfully controls or uses Content, or for whose benefit Content is held or transmitted, in connection with a Product.

    6. "Datto Software" means the software technology and all Intellectual Property Rights of Datto and its licensors in any Product, including any embedded software on or comprising Devices.

    7. "Device" means any image-based business continuity and disaster recovery product instance, regardless of whether it is physical hardware, or in virtual or imaged form.  

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

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

    10. "Online Portal" means a remote web-based application or portal provided by Datto that contains information related to the Product, including the ability to configure, manage, monitor, support and use the Product.

    11. "Product(s)" means any Datto image based business continuity and disaster recovery solutions subject to these Terms of Use, including Devices, Datto Software, and Services as well as all Enhancements to Products.

    12. "Policies" means the terms and conditions of any policies applicable to access, use, and support of the Products.  Policies are published on an Online Portal.

    13. "Services" means all services provided by or on behalf of Datto, including without limitation, business continuity, backup and disaster recovery, technical support, training, Online Portals or other applications provided by Datto.   Datto Services may be provided through any of the following, or any combination of the following, or any later developed or implemented, means: (i) the use of Devices owned by or under the control of the Content Owner, Administrator or other party; (ii) the use of remotely located servers owned by or under the control of Datto ("Datto Cloud") ;(iii) the use of Datto Software licensed for use by Content Owner or an Administrator.

    14. "Service Subscription" means the type of Service, Service Term, Payment Term and Retention Plan in which a Device is enrolled, as set forth in the Datto BCDR Service Policies.

    15. "Specifications" means the Policies, documentation, user manuals and any technical publications and materials, as applicable, relating to the Products.  Specifications may be published on an Online Portal.

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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

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

  6. 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.

  7. 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.

  8. 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).

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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.

  16. 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.

  17. 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.

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

PCLAI2012010 CONFIDENTIAL KROLL

Paragon Software Group Corporation

  1. Scope of Agreement

    1. 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.

    2. 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.

  2. Scope of License

    1. 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.

  3. Special forms of use

    1. 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.

  4. Restrictions

    1. 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.

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

  5. Warranties and Disclaimers

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

  6. Indemnification

    1. 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.

  7. Term of License

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

    2. 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.

  8. General Provisions

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

    2. 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.

    3. 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.

    4. 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.

  1. RIGHTS TO THE PRODUCT

    1. You acknowledge that Datto and its licensors own all intellectual property rights in and to the Product.  You will not engage in or authorize any activity that is inconsistent with such ownership.

    2. The Product may involve the use of third party technology licensed by Datto, the use of which is subject to such third parties’ license or other customer terms.  These terms are attached hereto as Exhibit A.

  2. DATTO’s RIGHTS AND RESPONSIBILITIES REGARDING CONTENT

    1. Datto’s Use of Content.  Datto will use Content only as necessary to provide and support the Product and will not otherwise access Content other than as permitted under the applicable Terms of Use, as described in the Datto Privacy Policy, or as authorized by an Administrator for support.   You and any Administrator you appoint are responsible for your Content and the consequences of its use in connection with the Product.

    2. Datto’s Rights.  In the event that Datto reasonably believes Content or related Product use violates the Product Terms of Use, may disrupt or threaten the operation or security of any computer, network, system or the Product, or may otherwise subject Datto to liability, Datto reserves the right to refuse or disable access to the Product or Content.  Datto may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request.   Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Datto may restrict access to any Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Datto takes any such action without prior notice, Datto will provide notice to the Administrator, unless prohibited by law.

    3. Use of Aggregate Data.  Notwithstanding anything else in these Terms or otherwise, Datto may evaluate and process use of the Product and Content in an aggregate and anonymous manner, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Datto may use and share such Aggregate Data to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business.    Datto retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information nor identify any Content Owner or individual.

  3. ADMINISTRATOR

    1. Datto will interact with the Administrator(s) you authorize to operate and manage use of the Product with your Content.   You are not a third party beneficiary of any agreement between Datto and an Administrator.

    2. An Administrator is not an agent of Datto and is not authorized to make any representations or warranties on behalf of Datto regarding the Product or its use.

    3. You are responsible for instructing and authorizing the Administrator with respect to use of the Product including backup settings, management of Content, deletion of Content, and transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, you and/or Datto.

    4. You expressly agree that Datto may rely on the instructions and authorization of the Administrator with respect to use and support of the Product and access and control of your Content.

  4. SECURITY

    1. Datto has implemented and maintains physical, technical and administrative measures designed to help secure Content under Datto’s control against accidental or unlawful loss, access or disclosure.   However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the reasonable measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities.

    2. You acknowledge and agree that the Administrator you authorize to manage use of the Product with your Content has access to and manages your Content. You and/or the  Administrator are responsible,  and in no  event will Datto be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of Datto, including but not limited to local Product access, LAN or internet connectivity.  You and/or the Administrator are responsible for the proper configuration and maintenance of security measures and for determining the security measures appropriate for the Content, including local encryption of sensitive Content

  5. INDEMNIFICATION

    1. You will defend, indemnify and hold harmless Datto from and against any loss, cost, liability or damage, including attorneys’ fees, for which Datto becomes liable arising from any claim relating to your Content, including if it a) infringes or misappropriates the intellectual property rights or other rights of a third party; b) violates any applicable law; or c) otherwise is in violation of these Terms or the Product Terms of Use.

  6. LIMITATIONS OF LIABILITY

    1. THE DATTO PRODUCT, INCLUDING ANY THIRD PARTY COMPONENTS OR TECHNOLOGY, ARE PROVIDED “AS IS.”  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

    2. DATTO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.

    3. THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  DATTO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

    4. DATTO DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF DATTO.

    5. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL DATTO OR ANY DATTO LICENSOR OR SUPPLIER BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.

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



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