1. DEFINITIONS AND INTERPRETATION
“Datto” means Datto Inc. and/or its affiliates.
“Datto Hardware” means the hardware that is provided pursuant to the Proposal.
“Datto Software” means the software that is provided pursuant to the Proposal.
“Datto Solution” means the Datto Hardware and Datto Software.
“Proposal” means the quotation and proposal for the supply of the Datto Solution.
“We” means Planetiware, its employees, agents and third party contractors, including Datto Inc. and its affiliates.
“You” means the recipient of the Datto Solution.
Standard Limited Hardware Warranty
New Datto Hardware is warranted against defects in materials and workmanship under normal use, handling and installation for a period of three years from the date of manufacture, regardless of the date of actual activation. The warranty does not extend to or include any third party components or software. We will at our option and expense (and as the sole remedy for breach of this warranty) arrange to either (i) repair the Datto Hardware using new or refurbished parts that are equivalent to new in performance and reliability; (ii) replace the Datto Hardware or any defective component with hardware or a component that is new or formed from new and/or refurbished parts that are equivalent to new in performance and reliability; or (iii) issue a credit for the Datto Hardware found by us to be defective during the warranty period. All warranty claims must be received by us within the warranty period.
Exclusions from Warranty – This warranty does not cover Datto Hardware that have defects or failures resulting from 1) accident, neglect or abuse; 2) improper installation or maintenance; or 3) modifications, repairs, improvements, or any other changes to any software or hardware component of the Datto Hardware that have not been authorized in writing by us. You are responsible for any costs incurred by us related to the foregoing exclusions
THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY WILL BE TO REPAIR, REPLACE, OR ISSUE A CREDIT FOR A DEFECTIVE PRODUCT AT OUR OPTION. THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN US AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Warranty Return Procedure:
When you notify us of a warranty claim we will relay that claim to Datto. After Datto authorizes the return and issues an RMA number, we will arrange for Datto to express ship either a replacement part or replacement Datto Hardware. The original Datto Hardware or part must be returned to us within 30 days of shipment of the replacement or you will be charged for the replacement. If Datto determines that there is “no defect found” or the defect is due to one of the exclusions listed above, you will be charged for the replacement part or the difference between the cost of the replacement Product and the value of the original returned Product.
Any repaired or replacement Product will have the same warranty as set out above for a period equal to the greater of (i) the balance of the existing warranty period for the original Datto Hardware; or (ii) sixty (60) days.
User License Agreement
This User License Agreement (“Agreement”) is a binding legal contract between you and Datto, Inc. (“Datto”). By clicking the “I ACCEPT” button, by installing, accessing, or using the Product, or any portion thereof, you will be bound by the terms of this Agreement. If you agree to the terms of this Agreement on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to the terms of this Agreement and your agreement to the terms of this Agreement will be treated as the agreement of the business or organization. If you do not agree to the terms of this Agreement, you will not have any right to use or access the Product. In such event, you may not install, access, use, or copy the Product. Notwithstanding anything to the contrary in this Agreement, your first use of the Product shall be deemed your express consent to this Agreement.
Capitalized terms used in this Agreement shall have their meanings specified in this Section or elsewhere in this Agreement.
1. “BCDR Device”
means any Datto hardware device to be used with the Datto Software and which you acquire separately from Datto or a reseller (“Reseller”).
2. “Datto Software”
means all intangible information in object code form constituting one or more computer or apparatus programs and the informational content of such programs, together with any Specifications supplied in conjunction with and supplementing such programs.
means any upgrade, update, enhancement, change, or modification to the Product. Datto reserves the right to make any Enhancements at any time in its sole discretion. All Enhancements will be subject to the terms of this Agreement, except to the extent that the parties mutually agree, in writing, to more restrictive provisions relating to such Enhancements.
4. “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 and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
means Datto’s Services, any BCDR Device, all Datto Software as well as all Enhancements thereto. Product also includes Specifications and tools with respect to the Product.
means the business continuity, backup and disaster recovery services provided to you by Datto through its Reseller. The Services may be provided through the use of a BCDR Device owned by you or under your control and/or the Services may be provided through the use of remotely located servers owned by or under the control of Datto.
means the documents, user manuals and any technical publications and specifications, as applicable, made available to you relating to the Product, or any portion thereof.
2. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement and your payment of all fees applicable to the Product, Datto grants you a revocable, non-sublicenseable, non-exclusive license during the Term of this Agreement to use the Datto Software for the purpose of using and accessing the Service within your organization solely for your internal business purposes. The Datto Software is licensed to you, not sold. Except for the limited license granted in this Agreement, Datto and its licensors retain all right, title and interest in and to the Datto Software, all copies thereof, and all Intellectual Property Rights in the Datto Software. Except for the license granted herein, all rights in and to the Datto Software, BCDR Devices and Services are reserved, and no implied licenses are granted by Datto.
2. Third Party Components
The Product, may contain certain third party components (“Third Party Components”) which are provided to you under terms and conditions which are different from this Agreement. Certain Third Party Components may contain or be comprised of open source software code. Each open source Third Party Component has its own copyright and its own applicable license conditions. It is your responsibility to review such additional terms before using the Datto Product and you acknowledge and agree that your use of the Datto Product shall be deemed your express consent to this Agreement and such additional terms. Notwithstanding the foregoing, the following terms and conditions apply to all Third Party Components: (a) all Third Party Components are provided on an “AS IS” basis without warranty of any kind; (b) Datto will not be liable to you nor will Datto indemnify you for any claims related to the Third Party Components; and (c) Datto will not be liable to you for damages of any kind, including for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages with respect to the Third Party Components. Except as may be provided in the Additional Terms at the end of this document, which terms are incorporated into this Licence, your sole and exclusive remedy with regard to any defect, claim, or other dispute relating to the Third Party Components is to cease use of such components.
3. User Feedback
If you provide information to Datto (or its affiliates and agents) in connection with any Product delivered hereunder, you agree that Datto and its affiliates and agents may collect, process and use such information for Datto’s business purposes, including for product development. If you have comments on the Product or ideas on how to improve the Product, please visit www.dattobackup.com/contact. You may provide any suggestions, ideas, inventions, innovations, improvements, or enhancements requests, feedback, recommendations, or other information to Datto regarding the Product (collectively, “Feedback”). Feedback is voluntary and Datto is not required to hold it in confidence. Datto may use Feedback for any purpose without obligation of any kind. To the extent a 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 Datto’s business, including the Product.
4. Use of Data
Notwithstanding anything to the contrary contained in this Agreement, you acknowledge and agree that Datto may (a) collect, process and aggregate any data used with, stored in, or related to the Datto Product by you and create aggregate data records (“Aggregate Data”) by removing personally identifiable information (“PII”) from the underlying data, (b) use such Aggregate Data to improve Datto’s Product, develop new products and services, understand usage, demand trends and general industry trends, develop white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business, and (c) share Aggregate Data with third parties and publish any reports, white papers, and other summaries based on Aggregate Data. For clarity, Datto shall not include any PII nor otherwise identify you or any individual user of the Datto Product.
3. LIMITATIONS ON LICENSE
The Product, including its structure, organization, source code, and documentation contain valuable trade secrets of Datto and its licensors. You may not copy or distribute the Datto Software. You may not, and you may not permit any third party to, (a) reverse engineer, decompile, disassemble, modify, or create works derivative of the Datto Software, BCDR Device, or Services, or attempt to reverse engineer, reconstruct, identify, discover, or otherwise attempt to derive any source code of any Datto Software (b) alter or modify any disabling mechanism which may be resident in the BCDR Device or Datto Software, (c) use or access the Product to (1) build a competitive product or service, (2) build a product using similar ideas, features, functions, or graphics of the Product, or (3) copy any ideas, features, functions, or graphics of the Product, (d) extract portions of the Datto Software or BCDR Device’s files for use in other applications, (e) remove, obscure, or alter Datto’s or any third party’s trademarks or copyright or other proprietary rights notices or product identification indicia affixed to or contained within or accessed in conjunction with or through the Product, (f) assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer any Product, or directly or indirectly permit any third party to use or copy the Product, (g) conduct, perform, or disclose any form of public benchmarking of the Product, or publicize the results of any benchmarking of the Product, without the prior, written approval of Datto, (h) use any portion of the Product other than as permitted under this Agreement; (i) access and/or use the Product (1) to send any unsolicited commercial email or invitation, (2) to request, collect, store, or disclose any unencrypted personally identifiable data (such as credit card numbers or social security numbers) or to violate any applicable privacy law, (3) to communicate any message or material that is deemed harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortuous, libelous, defamatory, slanderous, or otherwise unlawful, (4) in a manner which infringes any Intellectual Property Rights of any third party, (5) in a manner which violates any applicable laws, rules, or regulations, or (6) in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation, (j) use the Product to upload, post, email, distribute, communicate, transmit, or otherwise make available any viruses or similar malicious software that may damage the operation of a computer or the Product, (k) use the Product 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 Datto to any local or international law, rule, or regulation governing children’s privacy or otherwise related to protecting Minors, or (l) access and/or use the Product in any manner that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Product or any networks or security systems. All use of the Product shall be in accordance with its then-current Specifications. You shall be solely responsible for ensuring that your use of the Product is in compliance with all applicable foreign, federal, state and local laws, rules and regulations. You shall be solely responsible for all data, content, files, software, scripts, images, graphics, audio, video, text, music, sound, photographs, or other objects, information, messages, communications or other materials stored or backed-up using the Product (the “Content”). Although Datto is not responsible for any such Content through the use of the Product, Datto reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such Content of which Datto may become aware, at any time and without notice to you. You acknowledge and agree that the Product is comprised of commercially valuable assets of Datto or its licensors, the development or acquisition of which required the investment of substantial time, effort and cost by Datto. You further acknowledge and agree that the Product contains trade secrets of Datto and that it (and all portions thereof are) Datto’s Confidential Information and are proprietary to Datto. Accordingly, you hereby agree to use the highest degree of care to maintain the confidentiality of the Product. Modified Product will not be supported by Datto, and all warranties and refund rights thereto shall be void, if it has been modified in any way, including (a) using software that is not recommended or approved by Datto for the Product, or (b) installing a different operating system (OS) on a BCDR Device. Datto shall have no obligation to protect, maintain, or troubleshoot any server or workstation, or any Product used in conjunction with any server or workstation, with any Microsoft OS that is not supported by Microsoft itself. Datto may provide a repository for backups of those servers, but shall not have any obligation, responsibility, or liability arising out of the use of any such servers. You shall cooperate in good faith to implement Datto’s suggestions and solutions, and assist Datto in maintenance and troubleshooting issues, with respect to any support of the Products. You shall take all actions necessary to comply with the obligations in this Section. You shall immediately notify Datto of any unauthorized use, copying, or disclosure of the Product, or any portion thereof, 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. Each party acknowledges and agrees that your breach of any provision of this Section shall cause immediate and irreparable injury to Datto, and in the event of such breach, Datto shall be entitled to seek and obtain injunctive relief, without bond or other security, and all other remedies available at law and in equity.
4. TERM AND TERMINATION
The licenses hereunder will commence on the date you first use the Product or accept this Agreement, whichever is earlier, and continue in effect until terminated as provided in this Section 4 (Term and Termination). If the initial term set out in your agreement with the Datto Reseller (“Initial Term”) for delivery of Services hereunder is one (1) year or greater, then, upon the expiration of the Initial Term, this Agreement and all licenses hereunder shall automatically renew for one (1) or more additional terms of one (1) year (each, a “Renewal Term”) unless and until either party notifies the other party of its intent to terminate at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term. The Initial Term, together with any and all Renewal Terms, are collectively referred to as the “Term.” Without prejudice to any other rights, Datto may terminate this Agreement in its sole discretion on 5 calendar days prior written notice if you fail to comply with any of the terms and conditions of this Agreement or failure to pay for any fees due for use of the Product. Datto may terminate this Agreement immediately in the event that you breach Section 2.1 (License), Section 3 (Limitations on License), or Section 7 (Confidentiality) of this Agreement. In the event of a claim of Intellectual Property Rights infringement by any third party relating to the Product (“Infringement Claims”), Datto reserves the right to immediately terminate this Agreement and the rights granted hereunder. In the event of any expiration or termination of this Agreement 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 will automatically terminate on expiration or termination of this Agreement. The terms of Section 2.4 (Use of Data), Section 7 (Confidentiality), Section 8 (Limitation of Liability), Section 10 (Warranty Disclaimer), and Section 11 (Miscellaneous) will survive expiration or termination. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THIS AGREEMENT AUTOMATICALLY TERMINATES WHEN YOUR AGREEMENT WITH THE DATTO RESELLER TERMINATES.
1. Account, Passwords, and Security
You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your Content.
2. Additional Terms; Changes to the Service and Terms and Conditions
By accepting the terms of this Agreement, you acknowledge that you have reviewed and accept and understand the additional terms and conditions located here, including, but not limited to, Datto’s warranty, return, and upgrade policies and any additional policies posted here from time-to-time. Datto reserves the right at any time to modify this Agreement or the Service or any part thereof in its sole discretion. Datto will endeavor to notify you of such modification either by sending an email to the email address you provide with your registration or by a posting on Datto’s website. If you do not agree to any such modifications, you must terminate your account immediately. Please review the most current version of this Agreement from time to time, located at [insert link], so that you will be apprised of any changes.
6. TECHNICAL SUPPORT
You acknowledge and agree that Datto is under no obligation to provide you with telephone or technical support or maintenance for the Product. The reseller of the Product, may provide telephone and on-site technical support for the Product.
“Confidential Information” means all nonpublic information disclosed by a Party or any of its affiliates or its agents to the other Party that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes the Product
Confidential Information shall not include any of such information which: (a) was publicly available at the time of disclosure by the Party disclosing such information (the “Disclosing Party”); (b) became publicly available after disclosure through no fault of the Party receiving such information (the “Receiving Party”); (c) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; or (d) 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.
3. Protection of Confidential information
Except to the extent expressly and specifically authorized in this Agreement, the Receiving Party shall: (a) maintain the confidentiality of the Confidential Information of the Disclosing Party; (b) minimize the dissemination or copying of the Confidential Information of the other Party except to the extent necessary to perform its obligations under this Agreement; (c) use the same care to prevent disclosure of the Confidential Information of the Disclosing Party to third parties as it employs to avoid disclosure, publication, or dissemination of its own Confidential Information, but in no event less than a reasonable standard of care; (d) use the Confidential Information of the Disclosing Party solely for the purpose of performing its obligations under this Agreement or exercise the express rights granted to it under this Agreement; and (e) inform its employees, officers, agents, subcontractors and independent contractors who perform duties with respect to this Agreement about these restrictions.
4. Permitted Disclosures
Each Party may disclose Confidential Information of the other Party to its employees, officers, agents, subcontractors and independent contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and 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 employees, officers, agents, subcontractors and independent contractors with respect to such Confidential Information.
5. Required Disclosures
To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, provided that, as soon as possible after becoming aware of such law, order, or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide notice to the Disclosing Party not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed. Each Party shall be responsible for its own costs with respect to the performance of its obligations under this Section 7 (Confidentiality).
Except for any disclosure permitted under section 7.4, in the event of any disclosure or loss of Confidential Information, the Receiving Party shall notify the Disclosing Party as soon as possible.
7. Injunctive Relief
Each Party acknowledges that any breach of any provision of this Section 7 (Confidentiality) by the Receiving Party, or its employees, officers, agents, subcontractors, or independent contractors, may cause immediate and irreparable injury to the Disclosing Party, and in the event of such breach, the Disclosing Party shall 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.
8. Return of Confidential Information
Unless it is expressly authorized by this Agreement to retain the other Party’s Confidential Information, a Party shall promptly return or destroy, at the other Party’s option, the other Party’s Confidential Information, including materials prepared in whole or in part based on such Confidential Information to the extent containing Confidential Information, and all copies thereof, at the other Party’s request, and an officer of such Party shall certify to the other Party that it no longer has in its possession or under its control any Confidential Information in any form whatsoever, or any copy thereof.
The obligations of confidentiality set forth herein shall continue in full force and effect throughout the Term and continue beyond the Term in perpetuity or for so long as permitted under applicable law.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DATTO OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, WHICH SHALL INCLUDE DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE). IN ANY CASE, THE ENTIRE LIABILITY OF DATTO AND ITS SUPPLIERS/LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE FEES PAID BY YOU FOR THE PRODUCT IN THE 6 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. Some states do not allow the exclusion of incidental or consequential damages so some of the above may not apply to you.
1. Your Indemnification of Datto
You shall 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, demands, suits, or other proceedings of any kind, and all resulting loss, damage, liability, cost and expense (including reasonable attorneys’ fees) arising out of, resulting from, or in connection with your breach of this Agreement, the use, collection, security of (or any other authorized or unauthorized access to) Content, or your use or misuse of the Product, including any combination of the Product with any other hardware, software, or other intellectual property not provided by Datto. Datto reserves, and you grant to Datto, the right to assume 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 this Agreement
2. Your Remedies
If the Product becomes, or in Datto’s opinion is likely to become, the subject of an infringement claim, Datto may, in its sole and exclusive discretion, either (a) procure for you the right to continue to use the Product, or (b) replace or modify the Product so that it becomes non-infringing, without materially affecting the functionality thereof. If the alternatives specified in (a) or (b) above are not commercially reasonable in Datto’s sole and exclusive discretion, then Datto may terminate this Agreement, and you shall receive a pro-rated refund of all initial and one-time set up fees paid by you to Datto (if any) for the allegedly infringing Product. This Section 9.2 (Your Remedies) represents your sole and exclusive remedy and Datto’s sole and exclusive liability for any infringement claims based on the Product.
10. WARRANTY DISCLAIMER
EXCEPT AS OTHERWISE PROVIDED IN [link to hardware warranty] THE PRODUCT IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DATTO AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO SHALL CREATE ANY ADDITIONAL DATTO WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF DATTO’S OBLIGATIONS HEREUNDER.
2. NO WARRANTIES ON THIRD PARTY COMPONENTS
DATTO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY COMPONENTS. DATTO 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 VENDORS OR MANUFACTURERS OF THE THIRD PARTY COMPONENTS FOR WARRANTY AND PERFORMANCE INFORMATION.
3. USE OF THE INTERNET
THE PRODUCT MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT DATTO DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. DATTO SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.
1. Governing Law; Jurisdiction; Venue
This Agreement shall be made, 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 the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with this Agreement shall 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. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
2. Force Majeure
Any delay in or failure of performance of either party to this Agreement (excluding obligations to pay money for use of the Product) shall not constitute a default under this Agreement or give rise to any claim for damages to the extent such delay or failure of performance are caused by a force majeure event, including acts of god, fire, flood, explosion, war, strikes, or other concerted work stoppages of labor, inability to obtain raw material, equipment or transportation, breakage or failure of equipment or apparatus, loss of any necessary utility or interruption of power or communications sources or connections, failures in or affecting the performance, use, or availability of the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal, malicious, wanton, or capricious acts 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.
3. Export Control
You shall not export, directly or indirectly, the Product or any Content (through use of the Product) to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be your responsibility to comply with such export laws, rules and regulations including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. You shall defend, indemnify, and hold harmless Datto from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim that the Product (or any Content by use of the Product) was exported, shipped or transported in violation of applicable laws, rules, or regulations.
In the event that one or more of the provisions herein shall be invalid, illegal, or unenforceable in any respect, each such provision shall 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 shall not affect any other provision of this Agreement, and this Agreement shall 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.
5. No Waiver
Datto’s failure or delay to enforce any provision of this Agreement or respond to any breach by you or others shall not operate or be construed as a waiver or prevent Datto from taking any permitted action to prevent further breaches.
The following provisions shall survive termination or expiration of this Agreement: 1 (Definitions), 4 (Term and Termination), 5 (Services), 7 (Confidentiality), 8 (Limitation of Liability), 9 (Indemnification), 10 (Warranty Disclaimer), and 11 (Miscellaneous).
7. Entire Agreement
This Agreement and the Additional Terms constitutes 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 this Agreement will be binding on Datto or you unless it is in writing and signed by both Parties.
The section headings in this Agreement are for convenience of reference only, will not be deemed to be a part of the Agreement and will not be referred to in connection with the construction or interpretation of the Agreement. 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 this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed in each instance to be followed by the words “without limitation.”
USE OF STORAGECRAFT TECHNOLOGY
“StorageCraft Software” means the software licensed by Datto from StorageCraft Technology Corporation, Draper, Utah (“StorageCraft”).
“StorageCraft Solution” means StorageCraft Software sold or distributed together with the Product.
Use of StorageCraft Software. You acknowledge and agree that the StorageCraft Software may be used only as part of the StorageCraft Solution, only in a manner authorized by and consistent with this Agreement, and only while there is a current agreement between you and Planetiware for the use of Datto Products. You acknowledge and agree to the following:
• The StorageCraft Software may only be used as part of the StorageCraft Solution.
• StorageCraft’s copyright, trademark, or other proprietary rights notices contained in or on the StorageCraft Software or the StorageCraft Solution shall not be modified, removed, or obscured.
• StorageCraft disclaims, to the extent permitted by applicable law, 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 StorageCraft Software, except as provided in this Agreement.
• Upon termination of your agreement with Planetiware for the use of the Datto Products, you must remove and/or deactivate all copies of the StorageCraft Software from all your computers on which it has been installed and return or destroy any media containing the StorageCraft Software.
• In the event of nonpayment of fees payable to Planetiware, your use of the StorageCraft Software may be suspended or terminated.
• The StorageCraft Software must have an operating Internet connection, permitting it to periodically communicate with StorageCraft’s activation server to verify the validity of the license associated with the Product. If the Product is repeatedly unable to communicate with StorageCraft’s activation server, the seat of StorageCraft Software will deactivate.
• Notwithstanding the foregoing deactivation feature, upon termination of your agreement with Planetiware, Datto may and shall use best efforts to (a) verify and accomplish the immediate uninstall and/or deactivation of all seats of StorageCraft Software from all your computers on which it is installed; and (b) ensure that you return or destroy any media containing the StorageCraft Software.
• Planetiware shall provide Datto with reasonable access to its agreement with you, provided that it may redact such portions of the agreements deemed necessary to preserve confidentiality. You acknowledge and agree that Datto may, at StorageCraft’s reasonable request, provide StorageCraft copies of the redacted agreement.