CompuBC, Terms and Conditions

CompuBC General Terms and Conditions

Returns and Exchange
Returns and Exchange must be returned within 15 days of the purchase date and applies only to new products.
Item must be in the original box and be undamaged and the original sales invoice must accompany the item, a 20% restocking fee will apply.
Please retain the box and packing materials. These will be required if you need to ship the computer for Warranty service and maintenance.
Refurbished Products including and not limited to: Laptop batteries, Apple products, tablets & all monitors have a limited 90 Day Warranty unless noted otherwise. Products may be exchanged but not returned for cashback. labor/work that was provided cannot be refunded.

Advance Payment / Deposit for used items and or special order is nonrefundable.

Items not eligible for return or refund or exchange including but not limited to: Motherboards, Processors, Ram / Memory, Hard Drives, Video Cards, Sound Cards, Internal Add On Cards, Monitors, Software, Used/refurbished items, Special order and Service.
CompuBC offers manufacturers warranty for new items unless otherwise stated and will only warranty items that have a manufacturer's defect.
Warranty only applies to customers within Canada.
Warranty will apply only to machines purchased for your use and cannot be transferred.

Accidental damage is not covered, All damages caused by the end-user will void the Warranty. Items damaged by misuse or handling such as but not limited to liquid spills, overclocking, overheating, wrong use or installation, and or tempered by any kind will not be covered under warranty.
These terms govern the provision of any computer support services (“Services”) provided by CompuBC.

Any parts or upgrades installed by the customer which were not included with the computer at the time of purchase must be removed before returning a computer to CompuBC. If any such unauthorized third party parts are returned with a computer for Warranty service, CompuBC will not be responsible for replacing or repairing these parts if they are lost, damaged, or defective.

CompuBC provides you with access to and use of the Services subject to your compliance with the Terms. CompuBC reserves the right to refuse to provide the Services to anyone at any time without notice for any reason. You represent and warrant to us that you are at least 18 years old and that you have the right, capacity, and authorization necessary to legally bind yourself to these Terms.

Authorization to Access your Computer
You acknowledge that by your use of the Services you are authorizing CompuBC to access and control your computer for computer diagnosis, service, and repair. In connection with delivering the services, CompuBC may download and use the software, gather system data, take control of your computer, and access or modify your computer settings. By accepting these terms, you hereby grant CompuBC the right to connect to your computer, download, install and use the software on your computer to gather system data, repair your computer, take control of your computer and change the settings on your computer while performing the services.

Quotes
Any verbal quote given by CompuBC is given as a guide based on the limited information provided by a customer. A verbal quote is intended to give the customer an estimate on the price and not an assurance that the product or service will be sold at that price.
Any written quote will be provided by CompuBC at that price. All written quotes are valid for only 7 days. Once work commences, after a technician has evaluated the system, should it appear that the cost to repair is more than quoted, no work will commence without explicit client approval.

Legal Rights
The client is the legal owner or authorized representative of the legal owner of the property and all data and components contained therein sent to CompuBC. You must be the owner, or have the permission of the owner, for us to work on your equipment. We will only take instructions for work from the owner or their designated representative.

Abandoned equipment
Abandoned Property” Policy means if CLIENT equipment e.g. a computer, or peripheral equipment is brought to CompuBC for repair, and is “abandoned” by the customer for a period of 60 (sixty) days (from the date CompuBC received and/or repaired the equipment “whichever comes first”), CompuBC will recycle, or otherwise dispose of or sell the item as a loss recovery measure, to recover the cost of repairs carried out and labor time already spent on the equipment, etc.
“Abandoned” in this instance means that CompuBC will make “every reasonable best effort” to contact the CLIENT by telephone, email, or text (where such methods of contact are available) during the sixty (60) day period, and if after this time, CompuBC have received no response from the customer regarding the item or the client was reluctant to collect the property.
CLIENTS who leave goods with CompuBC for repair are under obligation to collect them, and CompuBC is entitled to dispose of/sell the goods if they remain uncollected and are not otherwise the subject of a dispute.
You agree to hold CompuBC harmless for any damage or claim for the abandoned property, which we may discard at our sole discretion. All charges are still your responsibility.

Software Installation
CompuBC may need to download and or run software on your personal computer to help diagnose and resolve your technology problem. CompuBC may need to reinstall the software that was included as part of your computer’s original configuration.
You agree that we may download and utilize Software from third-party web sites or CDs and accept any applicable license agreements on your behalf. You acknowledge and agree that we may download and install trial versions of Software that will expire and cease to function after a certain period (usually thirty days) unless you purchase a license to continue using such Software.

Backup Services & Potential Data Loss
While CompuBC will make all reasonable efforts to safeguard the contents (data) stored on your computer, you understand and agree that before contacting or allowing CompuBC to perform diagnostic repair or other services on your computer.
It is your responsibility to back-up the data, software, information, or other files stored on your computer disks and/or drives if you so desire. You acknowledge and agree that CompuBC and/or its third-party service provider shall not be responsible under any circumstances for any loss, alteration, or corruption of any software, data, or files.
If you do not have a backup of your software and data, we can provide you with our data backup service at an additional cost. However, we cannot guarantee the integrity of the data when backing up.
CompuBC is not responsible for any user data on any computer. If user data is lost, CompuBC will not be liable in any way.

Data Retention and disposal
Any Data left at CompuBC for a period of 60 (sixty) days (from the date CompuBC received the data “whichever comes first”), will be destroyed or wiped and recycled.
Computer hard drives may contain sensitive data and need to be destroyed correctly. It's not enough to discard this media by simply deleting or erasing it.
The most effective way to ensure the complete removal of data on an old hard drive is to physically destroy it.
CLIENTS who leave their DATA with CompuBC for any reason are under obligation to collect it, and CompuBC is entitled to destroyed or wiped and recycled the data.
CompuBC is not responsible for any user data. If user data is lost, CompuBC will not be liable in any way.

Confidentiality
CompuBC agrees not to disclose any information or data files supplied with, stored on, or recovered from client’s equipment except to employees or agents of CompuBC subject to confidentiality agreements or as required by law.

Upgrades
CompuBC can supply manufacturer specific upgrades or spare parts on request. Please note however that we cannot guarantee compatibility with your current system or configuration. CompuBC will offer suggestions and advice on upgrades but is not liable for any compatibility issues.

Managed services
CompuBC Managed services (Anti Virus, managed software, and services, Online Backup, etc.) subscription period begins on your purchase date and will automatically renew your product subscription until requested by the client to terminate the service. No refund provided for the remaining term of the subscription. The renewal price is subject to change.

Payment Terms
All work must be paid in full upon completion of service or the terms stated in the invoice. If an amount remains delinquent 30 days after it’s issue date, an additional 10% penalty will be added for each week of delinquency or the maximum permitted by law.
If an amount remains delinquent 60 days after it’s issue date, we will treat the matter as lost profit and your equipment as abandoned and becomes the sole property of CompuBC.
CompuBC will be forced to take the steps necessary to cover the cost of the unpaid invoice such as sell the equipment or take legal actions, In case collection proves necessary, the client agrees to pay all fees incurred by that process. No other written notice or demand will be given.
You agree to hold CompuBC harmless for any damage or claim for the abandoned property, which we may discard at our sole discretion. All charges are still your responsibility.

Limited Liability
CompuBC shall not be liable for any claims regarding the physical functioning of equipment/media or the condition or existence of data on storage media supplied before, during, or after service.
In no event, will CompuBC be liable for any damage to the laptop/desktop/equipment, loss of data, loss of revenue or profits, or any special, incidental, contingent, or consequential damages, however, caused, before, during or after service even if CompuBC has been advised of the possibility of damages or loss to persons or property, CompuBC liability of any kind for the services, including any negligence on its part, shall be limited to the contract price for the services
The client and CompuBC agree that the sole and exclusive remedy for unsatisfactory work shall be, at CompuBC option, additional attempts by CompuBC must be allowed to complete the work satisfactorily, or refund of the amount paid by the client. The parties acknowledge that the price of CompuBC services would be much greater if CompuBC undertook more extensive liability.
The client is aware of the inherent risks of injury and property damage involved in laptop/desktop repair, including without limitation, risks due to destruction or damage to the machine, media, or data and inability to repair the machine or recover data, including those that may result from the negligence of CompuBC, and assumes all known risks of injury and property damage that may result.

CompuBC Remote Support Terms and Conditions

I (Client) agree to pay CompuBC to repair, analyze and troubleshoot my computer software at a rate of $15 per 15 minus.
Payment

Payment of 15 minus or more may be secured prior to the support call.
Billing starts at the time of the appointment.

Time and Billing

Although CompuBC will endeavor to conduct all activities in a timely manner, troubleshooting issues may be a time-consuming process and agree to pay CompuBC for troubleshooting time as necessary.
If CompuBC determines that an issue needs more time to be researched, you may or may not be billed for that time.
I understand that some work performed may go over one hour and possible many hours.

Data

Due to the requirements of the repair, if approved by you, the client…we will back up your data to your computers and external hard drives/network shares to insure it’s integrity before performing work
I also certify that I will indemnify and hold harmless CompuBC for any and all data or software that may be lost or erased, as well as for any consequence of the erasure or loss of that data or software. Although CompuBC will take every precaution to preserve all data and software on the computer, I acknowledge that occasionally data loss will occur and/or software operation may be compromised.
During a remote support call, if CompuBC determines it’s necessary, the data is always backed up to the clients computer or external hard drive. We do not back up the data on Call on CompuBC servers.
If the repair requires

Training and Aftercare

If training is needed for backup methods and procedures, CompuBC will provide that training to me at an additional rate.
If aftercare is required, CompuBC will provide at additional rate.

Technical Malfunctions

I agree to indemnify and hold harmless CompuBC for any and all hardware or software malfunctions or accidents that may occur before, during or after work is performed on Client’s computer, and for any results thereof.
CompuBC reserves the right to recommend an On-Site visit if the troubleshooting requires a technician to perform the work on site.

Confidentiality Agreement

Any private information stored on your computer or viewed by our computer repair technicians during a remote support call will be held confidential unless required by law.
Any private or personal information provided via email to CompuBC will be kept confidential.
Your information is never sold or shared to outside companies

Data Recovery Terms and Conditions

1. Definitions:
1.1. “CompuBC Information Technology Services Ltd.” means the company holding this title or any person authorized to act on its behalf.
1.2. “Client” means anyone seeking CompuBC.'s services by signing this work order.
1.3. “Device” means any electronic thing, or accessory thereof, and any data contained within it.
2. Authorization:
2.1. The client authorizes CompuBC. to: (i) evaluate submitted devices, (ii) start the quoted recovery services after the
client’s written approval is received, and (iii) use receiving and courier services to ship and receive the client's devices to and
from the laboratory.
3. Client Affirms Ownership:
3.1. The client affirms they have ownership, or other legal right, to the devices submitted to CompuBC.
4. Device Warranties May Be Voided:
4.1. The client accepts that warranties or insurance on their submitted devices may be voided.
5. Limited Liability:
5.1. The client agrees not to hold CompuBC. liable for any damage to their submitted devices during shipment or while
working in good faith to provide evaluation and recovery services.
5.2. The client agrees not to hold CompuBC. liable for any business or opportunity loss due to any damage to their
submitted devices or delays to the completion time, including during shipment.
5.3. The client agrees not to hold CompuBC. responsible for storing devices greater than 30 days and acknowledges that
devices stored for greater than 30 days will be considered abandoned, at which time they will be securely erased and recycled.
6. Services Provided:
6.1. Data recovery is not guaranteed and all completion times provided are estimates.
6.1.1. Estimated completion times intend to indicate when recovery results, if any, are expected to be available for review.
6.1.2. Even with a full recovery, some data loss or file corruption is to be expected.
6.1.3. While CompuBC. always tries to complete service by the estimated time, delays may be caused by degraded
device responsiveness, ordering of parts, slow shipments, significant volumes of data, etc.
6.2. If a submitted device has been previously tampered with or the seals broken, CompuBC. will increase the quote by
50%. This reflects an increase in complexity as part of a Second Attempt recovery service.
6.3. When recovery results are available for review, the client shall receive the results in the form of a file list for review, or if a file
list is unavailable, be permitted to review a portion of the recovered data.
6.3.1. Recovery services are successfully complete when a full recovery of the client’s most important data as indicated on
the work order (the “most important data”) is recovered and: (i) the client reviews and accepts the results within 10 days,
or (ii) the results have been reviewable for greater than 10 days.
6.3.2. Recovery services are successfully complete when a partial recovery (less than 90%) of the client’s most important data
is recovered and: (i) the client reviews and accepts the result within 10 days, or (ii) the result has been reviewable for
greater than 10 days.
6.3.2.1. Recovery services are unsuccessful when the client rejects the results of a partial recovery.
6.3.3. If the client does not indicate what data is most important, or the most important data did not possibly exist on the device,
a full recovery of the device’s data shall be considered as a successfully complete recovery service when: (i) the client
reviews and accepts the result within 10 days, or (ii) the result has been reviewable for greater than 10 days.
6.4. After recovery results have been available for review for greater than 30 days, submitted devices in the possession of CompuBC. will be securely erased and recycled unless otherwise indicated in writing.
7. Privacy:
7.1. CompuBC. shall keep all private information secure and confidential in accordance with the Personal Information
Protection Act (British Columbia) and Personal Information Protection and Electronic Documents Act (Canada).
8. Fees and Payment:
8.1. Return shipping of successfully recovered data is free within Canada.
8.2. When the client requests the return of their submitted devices after a quote is declined or recovery services are unsuccessful,
return shipping & handling costs shall be the responsibility of the client.
8.3. Cost of a new storage device for recovered data will be charged to the client except for (i) hard drive Super Rush recovery
services, or (ii) when the client supplies their own storage device.
8.4. A new storage device might be able to be made bootable for an additional charge.
8.5. Cancellation shall only be permitted with a minimum $250 cancellation fee charged, depending on CompuBC.
resources expended, when less than 60% of the time between quote approval and estimated completion time has elapsed.
8.6. Second Attempt evaluations are subject to a $100 fee except when the device is submitted directly to the Vancouver Lab.
8.7. Storage of recovered data by CompuBC. for greater than 30 days after it was available for review shall be charged a
storage fee of at least $100 per month. Storage greater than 1 TB is subject to CompuBC latest data storage rates.
8.8. When recovery services are successfully complete, the client shall be invoiced the approved quoted fee.
8.9. Fees are subject to applicable taxes.
8.10. Invoices are due within 10 days of issue with past due invoices are subject to a $150 administration fee.
8.11. Interest of 4% per month shall be compounded on the 1st of each month to invoices greater than 20 days past due.
9. Warranties:
9.1. CompuBC. offers a 14-day warranty on the functionality of new devices purchased by the client. Warranty claims after
14 days must be presented to the device’s manufacturer by the client.
9.2. A copy of recovered data will be kept free of charge, for the client’s benefit, in CompuBC.’s backup server for 30 days
after recovered data is released to the client.

Datto User License Agreement

This User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) (“you” or “Customer”) 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 which you acknowledge include the terms located here and here, and here. 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 and the terms located here and here, and here, Datto is not willing to license any right to use or access the Product to you. 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.

DEFINITIONS 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.
3. “Enhancement” 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.
5. “Product” 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.
6. “Services” means the business continuity, backup and disaster recovery services provided to you by Datto. 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.
7. “Specifications” 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.
GRANT OF LICENSE
1. 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 located here. 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, 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.
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.
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 Section 4 (Term and Termination). If the initial term (“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.
SERVICES
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.
TECHNICAL SUPPORT
1. 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.
CONFIDENTIALITY
1. Definition. “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
2. Exclusions. 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).
6. Notification. 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.
9. Duration. 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.
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.
INDEMNIFICATION
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.
WARRANTY DISCLAIMER
1. WARRANTIES. 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.
MISCELLANEOUS
1. Governing Law; Jurisdiction; Venue.i 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.
4. Severability. 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.
6. Survival. 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, the Additional Terms and the Privacy Policy, and any Additional Policies 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.
8. Construction. 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.”

Datto BCDR PRODUCT TERMS OF USE

BCDR PRODUCT TERMS OF USE
Last modified May 2018
These BCDR Product Terms of Use ("Terms of Use") form a binding, legal contract between Datto, Inc. or one of our subsidiaries or affiliates depending on where you are located ("Datto" or "us") and you regarding your access to and use of Datto image-based business continuity and disaster recovery products (referred to in these Terms of Use as the "Product" or "Products").
PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING "I AGREE" BELOW OR BY INSTALLING, ACCESSING OR USING ANY PRODUCT YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND AND AGREE TO THESE TERMS OF USE, INCLUDING ALL APPLICABLE POLICIES AND THIRD PARTY TERMS INCORPORATED THROUGHOUT. IF YOU ACCEPT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS OF USE AND "YOU" WILL REFER TO THAT LEGAL ENTITY.
If you accept these Terms of Use solely as a third party Product Administrator (not as a Content Owner), you represent and warrant that you have the full authority needed to agree to these Terms of Use with respect to access, use and support of the Product and Content for the Content Owner.
If you do not agree to these Terms of Use, you may not register, access or use the Datto Product.
Capitalized words are defined in the last section or when first used throughout these Terms of Use.

USE OF PRODUCTS
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

Datto BCDR CONTENT OWNER TERMS

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

RIGHTS TO THE PRODUCT
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.
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.
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.
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
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.
LIMITATIONS OF LIABILITY
1. THE DATTO PRODUCT, INCLUDING ANY THIRD PARTY COMPONENTS OR TECHNOLOGY, ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
2. DATTO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.
3. THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATTO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
4. DATTO DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF DATTO.
5. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL DATTO OR ANY DATTO LICENSOR OR SUPPLIER BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
6. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO, ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL DATTO WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF DATTO’S OBLIGATIONS HEREUNDER.

Datto Privacy Policy

Datto, Inc., along with its subsidiaries and affiliates worldwide (collectively “Datto”, “we” or “us”), respects your privacy. This Privacy Policy covers Datto’s practices for the Datto websites that link to this Policy (“Websites”) as well as to the products, services and web-based applications provided by Datto (our “Products”). This Policy explains how we may use certain information we collect when you contact us, visit our Websites or purchase or use our Products. By using a Website or by purchasing, installing or using any of our Products, you are consenting to our practices as described in this Privacy Policy.

Personal Information
Personal Information means information that by itself identifies an individual (such as name, credit card number, or email address) as well as information that can be combined to identify an individual. In this Policy we distinguish Operational Personal Information from Personal Information in Content that may be backed up, stored or hosted through use of our Products, and treat each type of Personal Information differently, as described below.
Operational Personal Information
Operational Personal Information is Personal Information we collect and use in order to provide, support and market our Products. Operational Personal Information may include name, address, telephone number, email address and/or credit card number. We collect Operational Personal Information from individuals (including individual representatives of companies or other legal entities such as employees, officers or administrators) who register for, purchase and use our Products and from individuals who contact us and voluntarily disclose such information to us. This list includes authorized resellers, master resellers, users or potential users, or persons authorized to deal directly with Datto for Product support (we will refer to all of these in this Policy as “Customers”). Datto collects Operational Personal Information in many ways such as when someone fills out a form on one of our Websites, submits an email or other inquiry to us, enters a contest, posts on one of our community forums, registers for, purchases or uses a Product, registers or logs on to one of the areas of our Websites or web-based applications that are restricted to registered users, or requests support for a Product.

How we may Use Operational Personal Information
Datto uses Operational Personal Information for responding to and processing inquiries, orders and service requests or generally for any other purpose related to the original purpose for which the Operational Personal Information was collected. Datto also may use Operational Personal Information for supporting your relationship with Datto by designing services that are suitable to your needs, general Product support and updates, marketing, alerting you to new Product offerings as they become available, continuing existing service and support, and other similar purposes. This Information may also be used to provide you with notices about your purchases, your use of the Products, and to carry out Datto’s obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.

Personal Information in Content
We treat all Content that is backed up, stored or hosted using our Products in the same manner, described below, regardless of whether or not it contains Personal Information.

How we may Use Content
Datto will not view, access or use Content, including Personal Information within Content, except as needed to actually provide our Products, as authorized by Customers in connection with Product support as described below, or as otherwise described in this Privacy Policy. Datto is not a data controller of any Content.
In the course of providing Product support requested by a Customer, Datto may have incidental access to Content. Any Customer request for Product support will be deemed express permission for us to access Content as needed for the limited purposes of providing the requested Product support. Customer, as the data controller, is responsible for furnishing any notices or obtaining any consents required by law from the relevant individuals. Product support may be provided by any Datto entity on behalf of another.

Aggregate Information
Personal Information, including any Personal Information in Content, does not include Aggregate Information, which is information we collect or process about a group or category of data. Aggregate Information cannot be attributed to any individual. We may use and share such Aggregate Information to improve 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. Aggregate Information may be derived from information provided by any Customer, from use of our Products or from passive data collection techniques described below. No Personal Information is included in Aggregate Information. This Policy does not restrict or limit our collection and use of Aggregate Information.

How we may Share Personal Information and Content
Datto will not give, sell, share, or trade any Operational Personal Information or any Personal Information in Content to any party outside of Datto except as outlined in this Policy or with appropriate consent. We may disclose Personal Information to a third party in the following limited circumstances:

as needed to enforce Datto’s Terms of Use, policies and any other contractual relationships with our Customers;
when we have a good faith belief that the disclosure is necessary to prevent or respond to fraud, defend our Websites or Products against possible attacks, or protect the property and safety of Datto, our Customers or the public;
as required by law, such as to comply with a subpoena, warrant, regulatory oversight or similar legal process;
in connection with any potential sale, transfer, merger, consolidation or other transaction involving all or part of our company.

In addition, we may disclose Operational Personal Information (but not Content), as needed, in the following circumstances:

to companies that provide services that help us with our business activities such as processing Customer payments. These companies are authorized to use Personal Information only as necessary to provide these services to us; and
to companies that work with Datto on various projects; for example, Datto may share Operational Personal Information for customer relationship management purposes, email marketing purposes, to our reselling Partners, or with other companies whose products or services we think may be of interest to our Customers in joint marketing and support efforts.

Transfers of Personal Information
We may transfer Personal Information, including in Content, to countries other than the country in which the information was originally collected. Those countries may not have the same data protection laws as the country in which the information was initially provided. When we transfer Personal Information to other countries, we will protect that information as described in this Privacy Policy.

Cookies and Other Passive Data CollectionCookies
Cookies are small text files placed on your device when you visit our Websites. We use cookies to recognize you and your preferences, enhance the performance of our Websites and collect analytical information for the benefit of our business. Our Websites use a mixture of session (which expire with your browser session) and persistent (remain after your browser session expires) cookies to deliver services efficiently and to enhance the experience of using our Websites. The only third-party cookies used by us are analytical/performance cookies such as Google Analytics that gather anonymized information.
We use the following types of cookies for the purposes stated:

Strictly necessary cookies
These are cookies that are required for the operation of our Websites. They include, for example, cookies that enable you to log into secure areas of our Websites, use a shopping cart or fill in a form.
Analytical/performance cookiesThese cookies are used to provide us with statistical information about our Websites which we use to measure performance and to improve how our Websites work. These cookies allow us to recognize and count the number of visitors and to see how visitors move around our Websites. All information these cookies collect is aggregated and therefore anonymous.

Functionality cookies
These cookies are used to recognize you when you return to a Website. This enables us to personalize our content for you, tailor our interactions with you and remember your preferences.
By continuing to use our Websites you agree that we can place these types of cookies on your device. You may block most cookies by activating the settings on your browser that allow you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies you may not be able to access all or parts of our Websites. To opt out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout.

Other Passive Data Collection from use of Websites
We may passively collect such information as device information, log information, browser type, query specifics and Internet Protocol address. We gather this information through the use of various technologies such as cookies, described above, web beacons (as described below) and other electronic files used to track your navigation of our Websites, your completion of transactions and other browsing behavior. Datto may use web beacons alone or in conjunction with cookies to operate and improve our Websites and to gather information about usage of our Websites and interaction with emails or other electronic communications from Datto. Web beacons are clear electronic images that can recognize certain types of information on your device, such as cookies, when you viewed a particular Website tied to the web beacon, and a description of a Website tied to the web beacon. Datto may place web beacons in marketing emails or other electronic messages that notify us when you click on a link in the email that directs you to one of our Websites.
Do Not Track (“DNT”)Because there is not yet a common industry standard or how to interpret browsers’ DNT signals, Datto does not currently respond to browser DNT signals when interacting with our Websites.

Datto’s Commitment to Security
Datto is committed to protecting all Personal Information and Content we collect and use. To that end, we have implemented commercially reasonable physical, administrative and technical safeguards to help us protect Personal Information and Content under Datto’s direct control from unauthorized access, use and disclosure. However, no system of electronic data collection, storage and retrieval can be made entirely impenetrable and by continuing to use our Websites and Products you acknowledge and accept that despite the reasonable measures we employ, we do not guarantee that our Websites, Products and procedures are invulnerable to all security breaches or immune from viruses, security threats or other risks.

External Links/Third Party Websites/Non-Datto Administrators
Datto’s Websites may provide links to and be accessed via links from third-party websites, including social media websites, whose privacy policies differ from those of Datto. Even if the third-party is affiliated with Datto through a business partnership or otherwise, Datto is not responsible for the content, privacy policies, or practices of such third-party websites. External links are provided for convenience only and access to these links is at your own risk. We encourage you to review carefully the privacy policy of any web site you may visit.
Our Products are usually managed by non-Datto administrators that may have the ability to control access to, integration with and monitoring of Datto Products. This Privacy Policy describes only Datto’s practices and not the practices of any non-Datto administrators.

Review and Opt Out
If you have any questions about this Privacy Policy, Datto’s privacy practices, or if you would like to review, correct, access, amend or delete your Operational Personal Information, please contact us at privacy@datto.com.
If you choose not to receive general communications from us in the future, please contact us at http://pages.datto.com/unsubscribe.html.
To update your general communication preferences, please contact us at http://pages.datto.com/DattoSubscriptionCenter.html.
Please note that you may not opt out of receiving communications from us related to your use, support or payment for our Products.

Children
Our Websites and Products are not designed or intended to appeal to minors and we do not knowingly attempt to solicit or receive any information from children. However, if a child under 13 has provided Datto with Operational Personal Information, the parent or guardian should contact Datto immediately at privacy@datto.com so we can delete such information from our files.

Updates to our Policy
We may update this Privacy Policy from time to time. Please consult the “Effective Date” below to see when the Policy has been most recently updated. We encourage you to check this Policy frequently to see updates that may affect how your information may be used. Your continued use of our Websites and Products constitutes acceptance of any changes to this Policy.
Effective Date: March 21, 2016

Datto BCDR PRODUCT POLICIES

WARRANTY
1. Standard Limited Hardware Warranty. New Datto business continuity and disaster recovery physical device hardware is warranted against defects in materials and workmanship under normal use, handling and installation for a warranty period, which starts on the date the associated device is linked to your account and which continues for the period of time applicable to the associated product (see chart below). With respect to any device covered by this Standard Limited Hardware Warranty (Standard Warranty) that is found by Datto to be defective during the warranty period, Datto's obligations under this Standard Warranty are limited to, at Datto's option, either: (i) repairing the device using new or refurbished parts that are equivalent to new in performance and reliability; (ii) replacing the device with one that is new or formed from new and/or refurbished parts that are equivalent to new in performance and reliability; or (iii) issuing a credit for the device. In order to be eligible for warranty service, a device must be enrolled in an active Service Subscription for which payment is current. This Standard Warranty does not extend to or include software included with the associated device. The warranty period on the device is determined at the time of purchase, and is not affected by subsequent software updates or hardware upgrades. All warranty claims must be received by Datto within the applicable warranty period.
2. The Standard Limited Warranty does not cover device defects or failures resulting from 1) accident, neglect or abuse; 2) improper installation or maintenance; or 3) modifications, repairs, improvements, installation of third party software, or other changes to the hardware or software components of the device that have not been authorized in writing by Datto. You are responsible for any costs related to the foregoing exclusions.
3. A device that has been repaired or is a replacement of a device will continue to be under warranty for a period equal to the greater of (i) the balance of the existing warranty period for the original device; or (ii) sixty (60) days.
  Device Hardware TypeStandard Warranty PeriodSiris 3 Business, Siris 3 Professional, Siris 3 X Professional, Siris 3 Enterprise5 years
  NAS 3 Business Performance, NAS 3 Professional Performance, NAS 3 X Professional Performance, NAS 3 Enterprise Performance5 years
  All other Datto devices3 yearsTHIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY DATTO AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
EXTENDED HARDWARE WARRANTY
1. You may purchase a one-time, two (2) year warranty extension (Extended Warranty) for certain devices (see applicable pricing sheet for eligible devices). The total warranty period on any device (consisting of the Standard Warranty period plus optional Extended Warranty period) may not exceed five years.
2. An Extended Warranty simply extends the length of the Standard Warranty for two (2) years. All terms, conditions, procedures and limitations of the Standard Warranty continue to apply during the Extended Warranty. A device that has been repaired or is a replacement of a device pursuant to an Extended Warranty will continue to be under warranty for a period equal to the greater of (i) the balance of the existing Extended Warranty period for the original device; or (ii) sixty (60) days. In order to be eligible for warranty service during an Extended Warranty, a device must be enrolled in an active Service Subscription for which payment is current.
3. An Extended Warranty for an eligible device may be purchased at any time during the Standard Warranty period on the device. An Extended Warranty purchased at the same time as the device will be discounted as shown on the applicable pricing sheet. The entire non-refundable purchase price for an Extended Warranty must be paid in full at the time of the purchase of the Extended Warranty.
4. An Extended Warranty applies only to, and may not be transferred apart from, the device for which it is purchased.
5. The following devices are not eligible for Extended Warranties:
  1. any device (or replacement for a device) already covered by an Extended Warranty
  2. any refurbished device
  3. any device not listed as eligible on the applicable pricing sheet
  4. any device already covered by a five year Standard Warranty
6. Extended Warranties and Upgrades:
  1. An Extended Warranty does not extend the time during which a device is eligible for a Standard Upgrade under Datto's Upgrade Policy. If a device covered by an Extended Warranty is upgraded, an Extended Warranty for the upgraded hardware device will be priced at the difference in the list price for the Extended Warranty on the upgraded device and the list price for the Extended Warranty on the original device at the time of upgrade. If a device covered by an Extended Warranty undergoes a Field Upgrade, an Extended Warranty must be purchased for the upgraded device. If a device covered by an Extended Warranty is upgraded under the Standard Upgrade procedure, an Extended Warranty on the upgraded device is optional, but no credit will be given for any unused Extended Warranty on the original device.
  2. All warranty returns must be authorized by us with a valid RMA issued by our Technical Support team. If a warranty return is authorized, please follow the Product Return Guidelines.
RETURNS
1. All Datto Products may be returned at any time within 45 days of purchase. Please contact your Datto Sales Representative to request an RMA email that will include return instructions and, as applicable, a return shipping label.
2. For device returns, please follow the applicable Product Return Guidelines. To be eligible for a full refund, the device must be returned in its original packaging in an undamaged, working condition and must include all accessories originally shipped with the device. If hardware is returned missing parts, in damaged condition or if damage occurs while in shipment due to poor packaging, your refund may be reduced to cover the damaged hardware.
3. For all other Product returns, please follow any return instructions included with your RMA materials.
SERVICE
1. Service Subscriptions. To maintain backup and business continuity services, a device must be enrolled in an active Service Subscription for which payment is current. Each Service Subscription consists of the following: Service Plan, Service Term, Payment Term and Retention Schedule.
2. Service Plan. All Service Plans include licenses to the technology needed to perform backup and business continuity functions and access to Datto Technical Support. Some Service Plans also provide for replicated storage (see Datto Cloud Service Plan - Retention Schedules). The Service Plans available for each device may be found on the applicable pricing sheet. Examples of Service Plans include: Local Only service; Private Cloud service; Private Node service; Datto Cloud - 1 Year Cloud Retention; Datto Cloud - Infinite Cloud Retention; and Datto Cloud - Capacity Based Storage.
3. Service Term. The Service Term is the duration of a Service Subscription. Device specific Service Term options are indicated on the applicable device pricing sheet. The Service Term for a device begins when you register the device. All devices must be registered within six months (45 days for a device with a Committed Service Term) from the date the device is linked to your account. If you do not register your device within six months of purchase, you will lose any pre-paid Service Subscription fees for that device, which will not be refunded to you.
  1. An initial Service Term is either for one month (the minimum duration for a Service Subscription) or for a defined number of consecutive months, called a Committed Service Term. Certain devices and/or hardware discounts are available only when purchased with a Committed Service Term.
  2. If one month is identified on an Order, or if you do not otherwise agree to a Committed Service Term, the duration of a Service Subscription is one month, which will automatically renew on a month-to-month basis unless terminated by you (by providing written notice to us by the 15th calendar day of the month prior to the effective month of cancellation).
  3. If a Service Subscription is for a Committed Service Term, you agree to pay for Service Subscription fees for the entire Committed Service Term. A Committed Service Term is non-revocable and non-transferable from the device to which it applies. If you terminate Service at any time during a Committed Service Term, you will not receive a refund of any prepaid but unused Service Subscription fees and a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee times the number of months remaining in the Committed Service Term) will be due immediately and charged to your preferred payment method. A Committed Service Term (and payment obligation) begins no later than 45 days from the date of device purchase, regardless if you have registered the applicable device in our system.
  4. Unless you notify us in writing by the 15th calendar day of the month prior to the expiration of a Committed Service Term that you do not want to continue a Service Subscription for the device, the Service Subscription will convert to a one-month term and automatically renew on a month- to month basis at our then current fees until cancelled by you as set forth above.
PAYMENT TERM
1. Unless quoted separately by a Datto account representative in writing, monthly Service Subscription fees are set forth in the applicable pricing sheet. Service Subscription fees are billed monthly in advance on the first day of the month. The first payment is due upon device purchase. Once the device is registered in our system we will send your next invoice adjusted for the prepayment made.
2. Monthly payment for a Service Subscription is due on the 6th business day of the month (16th calendar day for EMEA) by your preferred payment method, as indicated in your Partner Portal account.
3. You may also choose to prepay a Service Subscription according to our one-year, three-year or five-year pre-payment options. If the event of termination of a prepaid Service Subscription, no refund for unused Service will be given unless otherwise agreed in writing.
4. Forms of payment accepted by Datto:
  Forms of Payment
  Credit Cards
  Credit CardUS, Canada, Australia, SingaporeEMEA*American ExpressYesYes
  VisaYesYes
  MasterCardYesYes
  DiscoverYesNo
  MaestroNoYesOther Forms of Payment
  Form of PaymentUS, Canada, Australia, SingaporeEMEACheck**YesYes
  ACH/Wire**YesYes
  Direct DebitYesYes
  Terms may be available – please ask your account representative* Credit card payments for EMEA must be provided using PayPal. You may provide payment as a Paypal guest or as a Paypal member.
  ** Check or ACH/wire must be approved in advance by our credit department - please contact your Sales Representative. If your check or ACH/wire payment for your Service Subscription is not received by us by the 6th business day of the month (16th calendar day for EMEA), your credit card on file will be charged for the outstanding invoice. If your check is returned to us for insufficient funds available, a fee may be charged to your account.
RETENTION SCHEDULE
1. Retention determines how and/or for how long data associated with a device is retained. Each device has local retention settings that control how data is retained on the local device and that are set by the user. The retention settings for offsite data associated with devices enrolled in Private Cloud Service and Capacity Based Storage are also set by the user.
2. As used in this section, a Retention Schedule refers to how and/or for how long data associated with a device enrolled in Datto Cloud Service is retained. Data associated with devices enrolled in any Datto Cloud plan will be retained, as specified in the applicable Retention Schedule associated with the purchased Service Plan, for as long as the device is under an active Service Subscription for which payments are current. If a Service Subscription terminates, Datto reserves the right to delete, after 60 days, the backed up data in the Datto Cloud associated with your device. It is your responsibility, during this period, at your expense, to request a copy of the data if you would like to retain a copy of the backed up data in the Datto Cloud associated with your device. See our Reverse Round Trip Procedures for further information.
DATTO CLOUD SERVICE PLAN - RETENTION SCHEDULES. The Datto Cloud Service Plan options are: (1) 1-Year Cloud Retention; (2) Infinite Cloud Retention; (3) Capacity Based Storage; (4) Live Dataset Retention; and (5) Mirrored Cloud Retention.
1. 1-Year Cloud Retention – The 1-Year Cloud Retention (also known as 1 Year Time Based Retention) plan is not limited to a pre-defined amount of Datto Cloud storage. Rather, incremental data backups are maintained for one year on a rolling basis, with the oldest incremental backups deleted first after one year. Automatic consolidation of incremental backup recovery points is applied on a rolling basis as shown below.
2. Infinite Cloud Retention – The Infinite Cloud Retention service plan uses a set retention schedule for the storage of cloud data. The plan is not limited to a pre-defined amount of Datto Cloud storage. Instead, incremental backups are retained for an indefinite period of time for as long as the Infinite Cloud Retention Service Plan Service Subscription for the device is current. Automatic consolidation of incremental backup recovery points is applied on a rolling basis as shown below.
3. Capacity Based Storage – Capacity Based Storage (previously known as Total Cloud Retention) allows you to set your own retention schedule. The plan provides for a pre-defined amount of Datto Cloud storage in the monthly Service Subscription fee as set forth in the applicable device pricing sheet. Usage of Datto Cloud storage in excess of the pre-defined allotment for the device is charged an additional amount as described in the applicable pricing sheet.
4. Live Dataset Retention - Live Dataset Retention is a legacy retention option according to which devices are allocated the lesser of 2 times the local storage capacity of the device or the most recent 12 months of incremental backups. Data is automatically pruned, oldest first, once the amount of data has reached the allotted storage (lesser of 12 months or 2 times the local storage capacity). Live Dataset Retention is no longer available for purchase with new devices.
5. Mirrored Cloud Retention – Mirrored Cloud Retention (also known as G Series Service) is a legacy retention option available on some devices, where the data in the Datto Cloud is kept in sync with the backed up data on the Datto device. If data is added or removed from the local device, those changes are made in the Cloud the next time the device syncs offsite. This provides data redundancy in case of a local disaster, but does not provide any benefits related to rolling back or change management. Typically, we offer a backup license as a separate service on devices enrolled in this Mirrored Cloud Retention in the event over-time backups are desired. Mirrored Cloud Retention is no longer available for purchase with new devices.
PRUNING OF INCREMENTAL BACKUPS FOR INFINITE CLOUD OR TIME BASED RETENTION SCHEDULESWith respect to Infinite Cloud Retention, 1-Year Cloud Retention, or any previously offered multi-year time based Service Plan, we use the following schedule for consolidating incremental backups, stored in the Datto Cloud. For devices under a previously offered multi-year time based Service Plan, monthly backups are deleted oldest first after the retention period selected (i.e., 2-10 years).
Pruning of Incremental Offsite Backups:Takes Place After:Intra-dailies7 Days
Dailies2 Weeks
Weeklies45 Days
MonthliesDepends upon service planNote: We reserve the right to limit Datto Cloud usage under all Service Plans if we determine there is activity or usage in a manner that: (i) adversely impacts Datto; (ii) results in excessive bandwidth or storage usage; or (iii) harms, disrupts, or otherwise diminishes the Datto brand, services, network, or any computer system.
SERVICE PLAN CONVERSION
1. If your device is not subject to a Committed Service Term, you may switch from any Service Plan to any other currently offered Service Plan available for your device model (Note: some limitations may apply in switching between certain Service Plans, please contact your Datto Sales Representative for additional information).
2. If a device is subject to a current Committed Service Term, the device may be converted to another Service Plan only if monthly Service Subscription fees under a new Service Plan are higher than under the current Service Plan. Service Plan conversions may require a different Retention Schedule or involve deletion of data backups and you are responsible for understanding the consequences of any conversion to a different Service Plan.
3. Regardless of whether a device is subject to a Committed Service Plan, some fees may apply in switching a device's Service Plan to Infinite Cloud Retention, please consult the Infinite Cloud price sheets for additional information.
CUSTOM BUILT DEVICES
1. Select Datto devices can be custom-built by starting with a pre-configured device and adding more RAM and/or a more powerful CPU. In some cases, a RAM and/or CPU change may necessitate using a different motherboard as well. These standard approved configurations are provided by Datto. The price for a custom-built device is the price of the pre-configured model, plus the price of the additional hardware. The monthly Service Subscription price for the custom-built device is the same as the monthly Service Subscription price of the standard, pre-configured device on which the custom-built device is based.
2. Each device that is custom-built by Datto using standard approved configurations comes with the same Standard Warranty as the pre-configured device on which it is based. To learn more about custom-built options, please contact your Datto Sales Representative.
UPGRADES
1. Standard Upgrades. Our Standard Upgrade Policy allows you to purchase a new device (the Upgrade device) and return an existing device (the Original device) to Datto for upgrade credit equal to the price you paid for the Original device. In no event will the upgrade credit exceed the lesser of the cost of the Upgrade device, or the amount paid for the Original device.
2. To be eligible for any upgrade, the Upgrade device must be purchased with a higher priced Service Subscription than the Service Subscription for the Original device. The only hardware discounts available on an Upgrade device purchase are any standard discounts for Committed Service Terms as found on the applicable pricing sheets. Please contact your Datto Sales Representative for available upgrade paths for your device. If the Original device undergoing a Standard Upgrade is subject to a current Committed Service Term, the Upgrade device must be purchased together with a new Committed Service Term (in increments described in the applicable pricing sheet) at least as long as the time remaining in the Committed Service Term on the Original device. For example, if the Original device has 6 months remaining on a 36 month Committed Service Term at the time of Standard Upgrade, and the shortest Committed Service Term offered is 12 months in length, then the Upgrade device must be purchased together with a Committed Service Term of at least 12 months. A device transferred from the Partner that originally purchased it is not eligible for an upgrade credit under the Standard Upgrade Policy; only the Partner that originally purchased that device can take advantage of a Standard Upgrade for that device.
3. To perform a Standard Upgrade, you must contact a Datto Sales Representative and purchase an eligible Upgrade device. Once you receive the Upgrade device, you must connect the Upgrade device and the Original device to the same local network, then migrate the data from the Original device to the Upgrade device (this may require the assistance of Datto Technical Support). After migration is complete and the Upgrade device is operational, you must return the Original device to Datto following the Product Return Guidelines to receive an upgrade credit. Once you register the Upgrade device, you will be billed at the new monthly Service Subscription rate for the Upgrade device. In order to ensure uninterrupted service, Service billing on the Original device continues until we either receive the Original device or you cancel the Service Subscription on the Original device. To receive the upgrade credit, the Original device must be returned in undamaged, working condition in adequate packaging. If damage occurs while in shipment to us due to poor packaging, your upgrade credit may be reduced to cover damaged hardware.
4. A Standard Upgrade can be applied one time within three years from purchase of the Original device, but at no time after. An Upgrade device obtained with following a Standard Upgrade comes with a new Standard Warranty applicable to the Upgrade device, but may not be used in a further Standard Upgrade under this policy.
5. For any of the upgrade paths for which a Field Upgrade is an option, in the event you would like to perform an upgrade to a different model, you must select a Field Upgrade rather than a Standard Upgrade.
FIELD UPGRADES
1. Different from the Standard Upgrade, a Field Upgrade does not require physically swapping an Original device for an Upgrade device. Instead, you may purchase from Datto and install on-site a Field Upgrade Kit, consisting of hard disk drives and in some cases RAM. In most cases a Field Upgrade Kit will upgrade a device to match the specs of a larger model in the same product line. Field Upgrade Kits are available only for certain devices - please see your sales representative for further information.
2. You may purchase Field Upgrade Kits through a Datto Sales Representative, paying the difference between the list price (at the time of upgrade) for the Original device and the list price (at the time of upgrade) of the Upgrade device. The price of the Service Subscription applicable to the device after the Field Upgrade must be higher than before the Field Upgrade.
3. Once the Field Upgrade Kit has been received, you should initiate the installation by contacting Datto Technical Support. A Support Representative will guide you through the process of adding the RAM to the motherboard, and adding the new drives via the hot-swap bays. Multiple drive swaps and/or resilvering operations may be required. The Field Upgrade process can be suspended should you need to perform a recovery from the local device. For further details, please consult the Partner Portal, or contact your Sales Representative.
4. The new Service Subscription rate on the Upgraded device will begin in the month immediately following the completed Field Upgrade.
5. If the device that has undergone a Field Upgrade has a prepaid Service Subscription, you will be charged a prorated amount equal to the difference between the original monthly Service Subscription rate and the new monthly Service Subscription rate times the number of months remaining in the prepaid term, rounded down to the nearest month. Discounts originally applied to a prepayment do not extend to new Service Subscription charges resulting from a Field Upgrade. A Field Upgrade does not affect a Committed Service Term on the device, which will remain in force at the new service Subscription rate.
6. A Field Upgrade can be applied at any point during the three-year period following purchase of the device, but at no time after. Performing a Field Upgrade does not extend the device's Standard Warranty and all components installed from a Field Upgrade Kit fall under the device's original Standard Warranty. At no point will the Field Upgrade Kit components be under warranty when the Standard Warranty for the Original device in which they have been installed has lapsed. For any of the upgrade paths for which a Field Upgrade is an option, in the event you would like to perform an upgrade, you must select a Field Upgrade rather than a Standard Upgrade.
ROUNDTRIPS
1. Datto RoundTrip service is used to expedite the replication of large data sets from a local Datto device to the Datto Cloud (standard RoundTrip) or to retrieve large data sets from the Datto Cloud (reverse RoundTrip). RoundTrip service involves the use of a physical storage device, called a RoundTrip device/drive, supplied by Datto or by you, that makes a “round trip" (either from Datto to you and back with a Datto supplied RoundTrip drive; or from you to Datto and back when you supply the physical storage device). RoundTrip service allows synchronization of data to the Datto Cloud, or retrieval of data from the Datto Cloud, in far less time than it takes to transfer large data sets over internet connections.
2. The primary purpose of standard RoundTrip service is to facilitate the initial replication of full images from a newly deployed Datto device to the Datto Cloud. After such initial cloud seeding, standard RoundTrip service should be used only to resolve off-site synchronization issues and not to compensate regularly for inadequate bandwidth at a local device site.
3. Reverse RoundTrip service is a fee-based service. Datto requires proper written authorization for all reverse RoundTrip orders before we send any data from the Datto Cloud. You must represent that you have the authority to request and receive a copy of the data in the Datto Cloud and are acting on the instructions of and for the benefit of the owner of the data. You are responsible for any misrepresentation involving your authority to receive data from the Datto Cloud that has not in fact been authorized by the owner of the data.
4. All RoundTrip service is subject to the RoundTrip Procedures. Datto is not responsible for any delayed or incorrect RoundTrip service caused by your improper ordering of RoundTrip service, incorrect shipments or shipment information, or any other failure by you to follow instructions or the RoundTrip Procedures. You are responsible for and agree to pay the full current replacement cost of a RoundTrip device/drive supplied by Datto if damage occurs to it (a) while in your custody or control; (b) due to your shipment using to inadequate shipping materials; or (c) if you fail to return it to Datto in the time specified in the RoundTrip Procedures. You are also fully responsible for all consequences of your delay in returning a RoundTrip device/drive that results in incomplete data synchronization between a Datto device and the Datto Cloud and the need for that data in the event of a disaster or other business continuity event.
PRODUCT RETURN GUIDELINES
1. Step 1 - Notification:
  1. Warranty Return: Once our Technical Support team has authorized the warranty return, a replacement device or part will be sent to you. You will be provided with the return shipping instructions and label with the replacement device or part. If you cannot locate this return label then we will have a new shipping label sent to you. To do so, if you are located in the United States, Canada, Singapore, or Australia, please contact us at returns@datto.com; if you are located in the EMEA region, please open a support ticket so that support may provide you with a new shipping label.
  2. Credit Return, Upgrade or Trial Return: We will provide you with return shipping instructions and label once a return request is processed through your Sales Representative. [see suggested improved wording above for the rest of this paragraph] If you are located in the United States, Canada, Singapore, or Australia, please contact us at returns@datto.com if you cannot locate this return label and we will have a new shipping label sent to you. If you are located in the EMEA region, please open a support ticket so that support may provide you with a new shipping label.
  3. Note: When we email you a shipping label, it will come from an automated sender with the shipper’s domain (e.g., ups.com or fedex.com). If you do not receive your label, please check your spam folder. If not found and you are located in the United States, Canada, Singapore, or Australia, please contact us at returns@datto.com. If you are located in the EMEA region, please open a support ticket so that we may assist you.
  4. Note: To avoid inadvertent data loss, we will not automatically cancel a Service Subscription on a device that has been authorized for return. We will terminate the Service Subscription as of the last day of the month we receive a returned device. If you do not return a device to us that is being replaced (for warranty, upgrade, or any other reason), billing will continue on the device until you cancel the Service Subscription.
2. Step 2 – Pack and ship:
  1. After receiving the shipping label, package your original device or part in the original or like packaging, ensure that it is protected, and return it to Datto within 45 days of receipt of the shipping label or you will be charged for the applicable device or part. If Datto determines after receipt of the original device or part subject to a warranty return that there is no defect found or the defect is due to one of the exclusions listed under our warranty, you will be charged for the part or the difference between the cost of the replacement device and the value of the original returned device. All devices must be returned in adequate packaging, and if damage occurs while in shipment due to poor packaging, fees may be charged to you to cover damaged hardware.

Laptop Rental Agreement

                                                                                                                                                                April 17, 2020

LAPTOP RENTAL AGREEMENT

This Agreement is entered by and between the undersigned (hereinafter, the “Renter”) and CompuBC Information Technology Services Ltd (CompuBC).
In consideration of being permitted to rent a CompuBC laptop and related equipment and attachments (“Rental Equipment”) and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Renter hereby agree as follows:
1.      Rental Term and Fees. The Renter is permitted to rent the Rental Equipment for a period not to exceed the pickup days and time listed above at the rate listed above.
A.     The Renter shall return the Rental Equipment no later than the Return Date indicated above and within business hours but may do so earlier to avoid additional daily charges.
B.     Rental Fees are non-refundable and due on the date the Rental Equipment is returned.

2.      Other Fees. In addition to the Rental Fees, CompuBC reserves the right to charge the following fees:
A.     Late fees: $50.00 each day the Rental Equipment is not returned, up to a maximum of $1000 or
B.     If Rental Equipment is not returned, the Renter will incur fees equivalent to fair market value of replacement equipment and a reasonable administrative fee related to its procurement.
C.      Missing peripheral equipment (Power adapter, wireless mouse, network cable, HDMI cable, laptop bag, or any peripheral equipment that came with the laptop)

3.      Permitted Use. Renter acknowledges and agrees that the Rental Equipment shall be only used by the Renter.
4.   Responsibility. Renter alone is responsible for all authorized and unauthorized use of the Rental Equipment for Term of this Agreement.
5.      Rental Equipment will use. The Rental Equipment will be used for the perps it is intended to be used, operate, maintain or store the Rental Equipment in a manner likely to cause damage to the Rental.

6.      Restrictions on Use. Renter shall not:
A.     Operate or use the Rental Equipment or permit it to be operated or used in violation of the law.
B.     Sell, assign, sublease, transfer or otherwise encumber the Rental Equipment.
C.      Dissemble, disfigure, repair or alter the Rental Equipment in any way and immediately notify CompuBC of any required repairs, upgrades and other alterations to the Rental Equipment, such work must be performed by or at the direction of CompuBC. Renter is liable for any and all unauthorized repairs, upgrades or alterations to Rental Equipment made by it or a third party.
D.     Breach the intellectual property rights of others (i.e. copyright) or use Rental Equipment in any
the way that is inconsistent with a contractual obligation (i.e. license agreements)

7.      Condition of Equipment. Renter acknowledges that it has fully examined the Rental Equipment, and except as otherwise specified in the Rental Assessment, appended hereto, Renter is satisfied with and has accepted the Rental Equipment in good condition and repair.

8.      Return. Renter shall return to CompuBC the Rental Equipment at the company office at the return Date, in the same condition as Renter received it, except for normal wear and tear resulting from proper use thereof. It is Renter’s sole responsibility to ensure that its personal data, information, and files are saved and/or transferred to another device prior to the return of the Rental Equipment.

9.      Termination. This Agreement is effective as of the date of the signature below and will terminate on the date the Rental Equipment is returned to and/or re-possessed by CompuBC. CompuBC reserves the right to terminate this Agreement earlier upon written notice to the Renter and to take any action reasonably necessary to re-possess Rental Equipment that is not returned as of the Return Date.

10.      Ownership. CompuBC shall at all times retain ownership and title of the Rental Equipment.
No ownership right or interest in and to the Rental Equipment will transfer to the Renter by operation of this Agreement.

11. Warranty. COMPUBC MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE RENTAL EQUIPMENT LICENSED PURSUANT TO THIS AGREEMENT, WHICH IS PROVIDED “AS IS”. COMPUBC EXPRESSLY EXCLUDES WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. COMPUBC FURTHER DISCLAIMS ANY LIABILITY WHATSOEVER FOR LOSS, DAMAGE OR INJURY TO RENTER OR THIRD PARTIES AS A RESULT OF ANY ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, LOSS OF DATA, VIRUS, HACKING, DEFECTS OR OTHER DAMAGES OF ANY KIND RESULTING FROM USE OF THE RENTAL EQUIPMENT.

12.   Loss of Property. Renter shall promptly notify CompuBC of any theft or loss of, or damage to the Rental Equipment. RENTER SHALL BE LIABLE FOR ANY LOSS OR THEFT OF THE RENTAL EQUIPMENT CAUSED BY ITS NEGLIGENT ACTS OR OMISSIONS.

13.   Indemnity and Liability. Renter shall indemnify hold harmless CompuBC from and against any claim, demand, cause of action, loss or liability (including legal fees) on account of:
A.     personal injury.
B.     damage to or loss of property; and/or,
C.      infringement of intellectual property rights of third parties, arising from or related to Renter’s use of Rental Equipment. The provisions of this Article shall survive the expiry or termination of this Agreement. IN NO EVENT SHALL COMPUBC BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES ARISING FROM RENTER’S USE OF RENTAL EQUIPMENT, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Remedies. If Renter defaults in the payment of Rental Fees or Other Fees when due, CompuBC shall have the right to exercise any one or more of the following remedies:
A.     To apply such outstanding charges and fees to the Renter’s Pre- Authorized Charge.
B.     To deny or revoke access to the Rental Equipment.
C.      To Involve the Police.
D.     To pursue any other remedy at law or in equity.

15.   Waiver. No failure of CompuBC to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent.

16.   Breaches. CompuBC acceptance of payment with knowledge of a default by Renter shall not constitute a waiver of any breach.

17.   Severability. In the event any provision of this Agreement is held by a court competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect.

18.   Entire Agreement. This Agreement represents the entire understanding relating to the use of Rental Equipment and prevails over any prior or contemporaneous, oral or written, communications, representations, and agreements. This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.

19.   Assignment. The renter may not, without the prior written consent of CompuBC, transfer or assign this Agreement or any part thereof. Any attempt to do so shall be a material breach of this Agreement and shall be void.

20.   Headings. Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.

21.   Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein.

BY SIGNING BELOW, RENTER HEREBY ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE ABOVE TERMS AND CONDITIONS AND AGREES TO COMPLY WITH THE AGREEMENT.

SPECIFICALLY, RENTER AGREES THAT IT SHALL NOT:

Operate or use the Rental Equipment or permit it to be operated or used in violation of the law.

Operate, use, maintain or store the Rental Equipment in a manner likely to cause damage to the Rental Equipment.

Sell, assign, sublease, transfer or otherwise encumber the Rental Equipment.

Dissemble, disfigure, repair or alter the Rental Equipment in any way.

Breach the intellectual property rights of others (i.e. infringe copyright) or use Rental Equipment in any way that is inconsistent with a contractual obligation (i.e. license agreements)

CompuBC Hardware Sales and Service Agreement - Terms and Conditions

THESE TERMS AND CONDITIONS SHALL GOVERN ANY PURCHASE OF A HARDWARE PRODUCT BY CUSTOMER, AND ANY SALES AND/OR DELIVERY OF A HARDWARE PRODUCT BY COMPUBC.

THIS DOCUMENT SHALL NOT APPLY AND DOES NOT GOVERN ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE BY COMPUBC. ANY SALE AND/OR DELIVERY OF SOFTWARE PRODUCT OR SERVICE TO CUSTOMER SHALL BE GOVERNED BY A SEPARATE CONTRACT BETWEEN COMPUBC. AND CUSTOMER (OR BETWEEN COMPUBC AND A THIRD PARTY OF WHICH CUSTOMERS IS A BENEFICIARY).

PLEASE READ THIS DOCUMENT CAREFULLY. BY PURCHASING A HARDWARE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY ITS CONDITIONS.

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY; OR LEGAL ENTITY TO THIS SALES ORDER.

PAYMENTS ARE DUE AT THE TIME AN ORDER IS PLACED OR UPON RECEIPT OF INVOICE. CUSTOMER SHALL PAY FOR THE INVOICED AMOUNTS IN ADVANCE IN ORDER TO BE ABLE TO RECEIVE THE ORDERED HARDWARE PRODUCTS.

1. Definitions

a) “Agreement” means this Hardware Sales Agreement – Terms and Conditions.

b) “Customer” means a party who purchases or otherwise receives a Hardware Product from CompuBC .

c) “Defect” means a situation where a Hardware does not perform, function or operate in accordance with the applicable terms of this Agreement and/or any material fault, failure, error or other defect in such Hardware.

d) “Hardware Order Form” means the documentation related to the quantity and specification of the Hardware, including the delivery address.

e) “Hardware Product” means any hardware product sold or delivered by CompuBC, including Computers, peripheral equipment, components, options and spare parts, as specified on the applicable order. For the avoidance of doubt, Hardware Products do not include Software Products or Services. Any computer system or modified hardware is considered a special order.

f) “Hardware Order Form” means the documentation related to the quantity and specification of the Hardware, including the delivery address.

g) “Integrated Software” means any software integrated and/or pre-installed in any Hardware, including operating system (as defined in the Customer’s configuration), firmware and keys used in the internal operation of the Hardware and/or any other Software.

h) “Manufacturer” means the manufacturer of a Hardware Product.

i) “Manufacturer’s Warranty” means the warranty of a Hardware Product provided by the Manufacturer of that product.

j) “CompuBC” means CompuBC Information Technology Services Ltd, with an address at 2951 Britannia crescent, Port Coquitlam BC, V3B 4V5, Canada.

k) “Purchase Order Acknowledgement” means the confirmation of any Hardware Order Form by CompuBC, including the quantity, the model, the prices, the shipping cost and the applicable tax(es).

l) “Purchase Order Confirmation” means the legally binding confirmation from the Customer that the Purchase Order Acknowledgement has been accepted, which can be done electronically (e.g. via email).

m) “RMA” means Return Merchandise Authorization.

n) “Service” means the performance of tasks, the provision of advice or assistance, or the provision of access to a resources or information by CompuBC.

o) “Software Product” means computer software programs sold or delivered by CompuBC, whether pre-loaded or provided separately, and related licensed materials.

2. General Terms

a) This Agreement shall govern any purchase of a Hardware Product by Customer, and any sale and/or delivery of a Hardware Product by CompuBC.

b) By purchasing a Hardware Product and/or service, you acknowledge that you have read this document, understand it, agree to be legally bound by its terms and conditions.

c) If you are accepting these terms on behalf of another person or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to this sales agreement.

d) This Agreement is the sole and complete agreement between Customer and CompuBC regarding the purchase and sale of any Hardware Product and/or service. Any additional or different terms, including without limitation those discussed between the parties or listed in any order or communication from Customer, shall not be binding on CompuBC unless signed by an authorized representative of CompuBC.

e) Any deviation/modification/change from the Purchase Order provided to CompuBC by the customer will be considered void unless agreed by Compubc in writing. If any deviation/modification/change to the Purchase Order by the customer, CompuBC will have the right to cancel the agreement with the customer and provide an adjusted invoice for the hardware and/or work done or request the customer to pay the amount listed in the original Purchase Order.

f) CompuBC may update these terms and conditions or any part thereof at any time without prior notice.

3. Software and Services Sales

a) Software Products or Services cannot be purchased on the Website. Customer must contact CompuBC to purchase Software Products or Services.

b) This document shall not apply and does not govern any sale and/or delivery of Software Products or Services by CompuBC, other than software loaded onto a Hardware Product before it is received by Customer.

c) Any sale and/or delivery of Software Products or Services to Customer shall be governed by a separate contract between CompuBC and Customer (or between CompuBC and a third party of which Customer is a beneficiary).

d) Any service and or labor offered for any hardware in the Quote and or Invoice is related to the hardware specified in the Quote and or Invoice unless otherwise indicated.

4. Delivery, installation and acceptance of Hardware

a) CompuBC or its assignee shall deliver the hardware to the delivery address specified by Customer on the Hardware Order Form. If the Hardware Order Form does not indicate an address, the hardware will be sent to the location specified by the Purchase Order Acknowledgement.
i) Customer authorizes, herewith, CompuBC to subcontract the services related to the Hardware;
ii) CompuBC shall dispatch the requested Hardware upon Customer’s Confirmation;
iii) The acceptance as well as the transfer of ownership of the Hardware occurs upon delivery.
iv) The Hardware Product purchased and sold under this Agreement is not a “Consumer Good” as that term is defined by Uniform Commercial Code or any other law that governs this contract;

5. Visual Accuracy

a) CompuBC shall not be liable for any error or inaccuracy in the photographs or other representations of products publicly displayed.

b) If you have any questions about the products, please contact CompuBC’ support at support@compubc.com before placing an order for Hardware Products.

6. Prices and Payment

a) The pricings for all products are listed in CAD (Canadian Dollars) and, unless otherwise indicated, exclude any taxes, shipping and handling costs.

b) CompuBC may make a price list available for any devices for information purposes to Customer. Nevertheless, the binding fees for the Hardware shall be detailed in the Purchase Order Acknowledgement and shall constitute the sums payable by Customers for CompuBC’ performance of its obligations under or in connection with this Agreement.

c) As far as Customer submits a Hardware Order Form, CompuBC will provide any update to Customer of the price list for all devices available for purchase and that updated price shall be paid by Customer according to this section.

d) CompuBC reserves the right to modify the prices of products offered at any time without prior notice.

e) Customer will be charged the prices displayed at the time your order was confirmed provided the goods ordered were available at this time, however, CompuBC reserves the right not to accept or to cancel your order in our sole discretion for any reason without liability, including if the products are not available, are incorrectly priced or are otherwise incorrectly described.

f) Payment is due at the time an order is placed or upon receipt of invoice, Customer shall pay for the amounts invoiced in advance in order to be able to receive the ordered Hardware Products and / or services.

g) Customer shall pay any applicable sales, use or similar taxes, fees or duties. Customer is responsible for taxes, if any, on the Hardware Product from the date CompuBC ships them to Customer. No other discounts, quantity entitlements, or promotions apply unless agreed in writing by CompuBC.

h) If CompuBC makes an error in pricing information and/or a typographic error, CompuBC may nevertheless refuse or cancel an order placed for a Hardware Product quoted at such price or described in error, even if CompuBC has confirmed the receipt of Customer’s order.

7. Title and Risk of Loss

a) All products ordered remain the property of CompuBC until full payment is tendered to CompuBC. In the event of a payment dispute, Customer is required to return the products that are the subject of dispute to CompuBC immediately upon request, and to assume the risks (in particular the risks of loss, theft, and damage) relating to such products.

b) CompuBC shall bear the risk of loss or damage to a Hardware Product until it is delivered to CompuBC’ designated carrier for shipment to Customer. Thereafter, Customer assumes risk of loss or damage of the Hardware Product.

8. Warranties, Limitation of Liabilities

a) CompuBC hereby assigns the Manufacturer’s Warranty (if any) for the Product to Customer, to the extent such Manufacturer’s Warranty exists and is assignable.

b) THE MANUFACTURER’S WARRANTY (IF ANY, AND IF ASSIGNABLE) IS THE ONLY WARRANTY THAT SHALL BE PROVIDED BY COMPUBC WITH RESPECT TO THE HARDWARE PRODUCT.

c) COMPUBC MAKES NO WARRANTIES FOR THE HARDWARE PRODUCT. THE HARDWARE PRODUCT IS PROVIDED “AS IS,” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, TO THE FURTHEST EXTENT PERMITTED BY LAW, EXCEPT TO THE EXTENT (IF ANY) THAT A MANUFACTURER’S WARRANTY EXISTS AND IS ASSIGNABLE.

d) IN ANY ACTION UNDER OR RELATED TO THIS AGREEMENT, COMPUBC SHALL NOT BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: 1) THIRD-PARTY CLAIMS FOR DAMAGES; 2) LOSS OF, OR DAMAGE TO, DATA; 3) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR 4) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SOME DAMAGES, THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO THIS AGREEMENT. EXCEPT FOR BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY. IN THE EVENT COMPUBC IS DETERMINED BE LIABLE TO CUSTOMER, ITS LIABILITY SHALL BE LIMITED TO THE LESSER OF A); THE AMOUNT OF ACTUAL DIRECT DAMAGES SUFFERED BY CUSTOMER; OR B) THE AMOUNT CUSTOMER PAID COMPUBC FOR THE HARDWARE PRODUCT.

9. Return of Hardware Product Covered by Manufacturers Warranty

a) In the event a Hardware Product covered by a Manufacturer’s Warranty fails to operate during the warranty period as result of a manufacturing defect, then CompuBC shall facilitate return of the Hardware Product to the Manufacturer for its repair or replacement in accordance with the Manufacturer’s Warranty.

b) CompuBC will not facilitate return of a Hardware Product if (i) it is not covered by a Manufacturer’s Warranty, (ii) the return is requested outside the Warranty Period, or (iii) the Hardware Product fails to operate as a result of any special software, key injections or firmware loads, or faulty accessories, cables, plugs or power supply units.

c) All requests for returns must be submitted by email, and must include:

i) Contact Information: name of Customer’s company, name of contact person at Customer’s company, phone number, email address, and purchase order number or reference number
ii) Shipping Information: address where Hardware Product should be shipped back to Customer after repair or replacement by Manufacturer,
iii) Product Information: Purchase order or reference number for the product purchase, product name, product serial number, product manufacturer, any key injection numbers
iv) Reason for Return: description of the operating issue with respect to the Hardware Product

d) If the return is approved, then CompuBC shall issue an RMA to Customer.

e) After receipt of the RMA, Customer must ship the Hardware Product to the return address listed on the RMA in its original packaging, together with all accessories, user manuals and other documentation, a copy of the RMA, a copy of the invoice, and the original shipping label. The return must be received at the return address listed on the RMA within ten (10) calendar days of the date the RMA is issued.

f) Customer assumes risk of loss and damage for a Hardware Product returned without an RMA.

g) Returns may take ninety (90) days or longer. For this reason, CUSTOMERS ARE STRONGLY ENCOURAGED TO PURCHASE EXTRA HARDWARE PRODUCT UNITS TO AVOID DOWNTIME DURING THE RETURNS PROCESS.

10. Customer Information

a) CompuBC and its affiliates may store, use and process contact information and other information about Customer, including name, phone numbers, addresses, and e-mail addresses, as necessary to perform under this Agreement, including but not limited to returns service.

b) Customer information will be processed and used in connection with this Agreement and the Hardware Product and may be transferred by CompuBC to any country where CompuBC does business; and may be provided to entities acting on CompuBC’ behalf in relation to this Agreement and the Hardware Product. CompuBC may also disclose such information where required by law.

11. Force Majeure

a) CompuBC shall not be liable to Customer for any failure or delay in the performance of its obligations hereunder, to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature; acts of war; terrorism, riots, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond the reasonable control of CompuBC.

12. No Export by CompuBC

a) Any Hardware Product purchased under this Agreement is only for use in are subject to the export the applicable regulations.

b) Customer shall comply with the applicable export regulations.

13. Entire Agreement

a) This Agreement constitutes the entire agreement and understanding between Customer and CompuBC concerning the purchase, sale, and/or delivery of any Hardware Product.

b) This Agreement supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Customer and CompuBC (including, but not limited to, any prior versions of this Agreement).

14. Governing Law

a) This Agreement and all transactions and disputes arising shall be governed by the laws of Canada, without regard to its conflict of law principles.

b) Neither party may bring an action arising out of or related to this Agreement more than two (2) years after the cause of action arose.

15. Dispute Resolution

a) Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in BC, Canada, before one arbitrator; provided that , nothing in this arbitration provision or these Terms & Conditions shall preclude CompuBC for seeking injunctive relief to stop any unauthorized use of its intellectual property.

16. Miscellaneous

a) If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of shall remain in full force to the extent permitted by law.

b) No failure, forbearance, neglect or delay of any kind or to any extent on the part of CompuBC in connection with the enforcement or exercise of any rights under the use terms, the sale terms, the additional terms shall affect or diminish CompuBC’ ability to enforce such rights or any other rights under the use terms, the sale terms, the additional terms.

[End of Agreement]
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