2. CUSTOMER USE OF THE OFFERINGS
2.1 Authorized Users and Accounts. You may allow your Authorized Users to use the Cloud Services and Software under these Terms. You are responsible for your Authorized Users’ compliance with these Terms. You may be required to create an account to use certain services or features on the website. You will provide accurate and up-to-date information. You are responsible for maintaining the confidentiality of your account passwords. You are responsible for all activities that occur under your account. You will notify CrashPlan immediately of any unauthorized use of, or other security breach related to, your account. CrashPlan has the right to disable any account at any time and for any reason.
2.2 Software and Cloud Services. CrashPlan grants you a nonexclusive, non-sublicensable, non-transferable, worldwide license to use the Software, Cloud Services and Documentation during the Subscription Term solely for your bona fide internal business purposes. You must only use the Software and Cloud Services for up to the number of Authorized Users or devices in accordance with the Documentation. You may copy the Software and Documentation as necessary to install and run the Software, and for backup and archiving. CrashPlan will provide the Cloud Services in accordance with the applicable Documentation and Service Level Agreement. You will reasonably cooperate with CrashPlan to resolve any issues relating to your use of the Software and Cloud Services. To use the Cloud Services, you must create login credentials (e.g. a username and password). You are responsible for all activity occurring under your login credentials and will notify CrashPlan as soon as possible if you believe there has been any unauthorized use of your login credentials.
2.3 Restrictions. You will not (A) permit anyone other than your Authorized Users to use the Offerings; (B) use the Offerings for the benefit of any third party other than your Authorized Users; (C) use the Offerings except as permitted under these Terms; (D) decompile, reverse engineer, modify or create a derivative work of the Offerings (to the extent this restriction is not prohibited by law); (E) attempt to test the vulnerability of, gain unauthorized access to, or circumvent limitations on the use of, the Offerings or their related systems or networks; (F) interfere with the performance of the Offerings; (G) remove any copyright or other proprietary notices in the Offerings; or (H) access the Offerings for the purpose of developing or operating products or services in competition with the Offerings.
2.4 Evaluation Use. CrashPlan may make an Offering or a new feature or functionality available to you on an evaluation or beta basis (“Evaluation Offering”). Each Evaluation Offering is provided “AS IS” without Service Level Agreement, support or warranty of any kind. You must only use an Evaluation Offering for evaluation purposes during the evaluation period set by CrashPlan.
3. INTELLECTUAL PROPERTY
3.1 Customer Ownership. As between you and CrashPlan, you retain all right, title and interest in and to the Customer Data and all related Intellectual Property Rights. CrashPlan’s rights to use the Customer Data are only those expressly granted under these Terms.
3.2 CrashPlan Ownership. As between you and CrashPlan, CrashPlan retains all right, title and interest in and to the Offerings and all related Intellectual Property Rights. Your rights to use the Offerings are only those expressly granted under these Terms. All Software and Offerings are licensed and not sold, even if CrashPlan uses words like “sale” or “purchase” in sales materials.
3.3 Feedback. If you provide any suggestions to CrashPlan regarding the Offerings, CrashPlan may use the suggestions and incorporate them into the Offerings without compensation or restriction.
3.4 Open Source Software. “Open Source Software” means the software components that CrashPlan provides in the Software under separate license terms that are found either in the open_source_licenses.txt file (or similar file) provided within the Software or at https://www.crashplan.com/open_source_licenses. Open Source Software is licensed to you under its own applicable license terms. These license terms are consistent with the license granted in section 2.2 (Customer Use of the Offerings: Software and Cloud Services) and take precedence over these Terms to the extent that the Terms impose greater restrictions on you. If required, CrashPlan makes the Open Source Software source code and modifications (the “Source Files“) available to you on the CrashPlan website or on written request.
4. SECURITY AND DATA PROCESSING
4.1 CrashPlan Obligations. CrashPlan will provide the Software and Cloud Services in accordance with the Information Security Addendum available at https://www.crashplan.com/information-security-addendum. CrashPlan will process your Customer Data in accordance with the applicable Data Processing Addendum available at https://www.crashplan.com/data-processing-addendum. Following the expiration of your Subscription Term and unless prohibited by applicable law, CrashPlan will delete any Customer Data in accordance with the applicable Documentation. If you request, CrashPlan will provide written certification that CrashPlan deleted your Customer Data.
4.2 Customer Obligations. You are responsible for providing notices, obtaining consents, and satisfying any other requirements for CrashPlan to use the Customer Data. You will not provide CrashPlan with any data that is regulated by the United States Health Insurance Portability and Accountability Act unless you have entered into a business associate agreement with CrashPlan. Your use of our services must comply with these Terms, applicable CrashPlan policies, as well as applicable law, including export control laws and regulations, privacy laws, intellectual property laws and other third-party legal rights.
4.3 CrashPlan Data.
(A) The Offerings are designed to protect from data loss events by collecting and analyzing data pertaining to computer files. This includes metadata about files and folders (“Metadata”). Metadata is data that provides information about other data but not the content of the data itself. Depending on how you maintain and handle your files and folders, your Metadata could potentially include personally identifiable information (PII). For instance, if your naming conventions of your files include your name. CrashPlan may use the Metadata and Offering usage data to analyze, characterize, attribute, and identify events, which results in generalized product improvements and new products. To understand how we protect your privacy and PII, please refer to https://www.crashplan.com/privacy. “Service Data” means these generalized product improvements and aggregated information about the performance of the Offerings, such as the frequency of feature usage, technical performance metrics and product configuration. CrashPlan uses Service Data to: (i)) analyze trends and performance, (ii) improve the functionality of, and develop, the Offerings and new products, and (iii) permit you to use other applications that use the data. Service Data is accessed only by CrashPlan, and CrashPlan will not provide Service Data to any third party to use for its own purposes. Service Data does not identify you, your users, or any personal data. Service Data is not your Confidential Information or Customer Data.
(B) CrashPlan also collects account-related data during your purchase and use of the Offerings (“Administrative Data”). Administrative Data never includes Customer Data. CrashPlan uses Administrative Data to provide the Offerings, bill you for the Offerings, advise you of new CrashPlan products and service, and comply with CrashPlan’s contractual obligations and applicable law. CrashPlan is an independent controller of the Administrative Data and will process the Administrative Data under the CrashPlan privacy statement available at: https://www.crashplan.com/privacy.
5. PAYMENTS AND BILLING
5.1 Recurring Billing. The free trial is designed to let you experience the service. CrashPlan automatically bills your credit card each month, year, or two years, unless you are set up with ACH. Billing is based upon the plan you signed up for at checkout on the CrashPlan website. Your Order will continue to renew until you or CrashPlan choose not to renew. You can cancel renewals by contacting customer support.
5.2 Taxes. All fees owed to CrashPlan are exclusive of any Taxes. “Taxes” means any sales, VAT, GST (Goods and Services Tax), use, gross receipts, business and occupation, and other taxes (other than taxes on CrashPlan’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. You will pay or reimburse CrashPlan for all Taxes arising out of the transactions occurring during the applicable subscription term. If you are required to pay or withhold any Tax for payment, you will gross up your payments to CrashPlan so that CrashPlan receives all sums due in full and free from any deductions. CrashPlan can rely on the name and address you provide to CrashPlan as being the place of supply for sales tax, income tax, and VAT purposes. If you are tax exempt, you will provide exemption certificates for the applicable taxing authorities.
These Terms incorporate by reference all of the documents identified as applicable to your ordered Offerings (“Ancillary Documents”). Ancillary Documents may include, but are not limited to, the Documentation, Service Level Agreement, Information Security Addendum, Data Processing Addendum, Support Policy and Offering Descriptions. Because the Offerings are continually evolving, CrashPlan may update any of the Ancillary Documents from time to time, and the Ancillary Document applicable at any time is the then-current version. CrashPlan will provide you with written notice if any update to an Ancillary Document will materially and adversely affect your use of an Offering or CrashPlan’s obligations to you.
The Offerings are provided “as is” without any warranties, express or implied. To the extent permitted by law, CrashPlan disclaims all other warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement), and any warranties arising from usage of trade, course of dealing or course of performance.
You agree to indemnify, defend and hold harmless CrashPlan from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third-party against CrashPlan and its affiliates regarding (A) files stored with us by you or your users; (B) that Customer Data infringes any patent, trademark or copyright, or misappropriates a trade secret, of a third-party; or (C) arising from your failure to comply with applicable laws with respect to Customer Data (“Customer Data Claim”).
9. LIMITATIONS OF LIABILITY
9.1 Exclusion of Damages. To the fullest extent allowed by law, CrashPlan will not be liable for any indirect, incidental, special, consequential or punitive damages, or any lost profits, business opportunities or revenues, loss of use, or any loss of data under any theory of liability. This exclusion applies regardless of whether CrashPlan has been advised of the possibility of those damages.
9.2 Cap on Monetary Liability. The maximum aggregate liability for CrashPlan for claims related to these Terms will not exceed an amount equal to the total fees paid to CrashPlan for your use of the Offerings in the twelve (12) months prior to the event giving rise to the claim.
10. CONFIDENTIAL INFORMATION
10.1 Obligations. “Confidential Information” means non-public information provided in connection with this Agreement that is labeled “confidential” or the like, or is provided under circumstances reasonably indicating its confidentiality. CrashPlan’s Confidential Information includes your pricing and product roadmaps. Your Confidential Information includes your Customer Data. A party (“recipient”) may use Confidential Information of the other party (“discloser”) solely to exercise its rights and perform its obligations under these Terms. CrashPlan and you will each protect the other party’s Confidential Information in the same manner as it protects its own Confidential Information of a similar nature, but in any event with not less than reasonable care. CrashPlan will process your Customer Data in accordance with the Information Security Addendum and applicable Privacy and Data Processing Addendum.
10.2 Exclusions. The recipient’s obligations under section 10.1 (Confidential Information: Obligations) will terminate with respect to any Confidential Information that the recipient can show: (A) was already rightfully known to the recipient without any obligation of confidentiality at the time of disclosure; (B) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (C) was at the time of disclosure, or through no fault of the recipient has become, generally available to the public; or (D) was independently developed by the recipient without access to or use of the discloser’s Confidential Information.
10.3 Permitted Disclosures. The recipient may disclose Confidential Information only to its employees, professional advisors, service providers or contractors who have a need to know the Confidential Information and who are under a similar duty of confidentiality. The recipient may also disclose Confidential Information to the extent required by law or regulation, in which case the recipient will notify the discloser as soon as practicable if permitted by law or regulation. At the discloser’s request and expense, the recipient will take reasonable steps to contest and to limit the scope of any required disclosure.
10.4 Remedies. The discloser may seek an injunction to prevent the actual or threatened unauthorized disclosure of Confidential Information.
11. Survival. The following sections will survive termination or expiration of these Terms: 3 (Intellectual Property); 4 (Security and Data Processing); 5.4 (Payment and Billing); 7 (Disclaimers); 8 (Indemnification); 9 (Limitations of Liability) and; 10 (Confidentiality).
12.1 Governing Law and Venue. These Terms are governed by the laws of the State of Minnesota without regard to its principles of conflicts of law, and any disputes will be exclusively resolved in the State or Federal courts located in Hennepin County, Minnesota.
12.2 Class Action and Trial Waiver. You and CrashPlan agree that each party may bring disputes against the other only in an individual capacity and not on behalf of any class of people. You and CrashPlan agree not to participate in a class action, a class-wide arbitration, claims brought in a representative capacity, or consolidated claims involving another person’s account. You and CrashPlan agree to waive the right to trial by jury for all disputes.
12.3 Compliance with Laws. Each party will comply with any statutes and regulations that apply to it in its performance under these Terms.
12.4 Export Compliance. The Offerings are of United States origin, are provided subject to the U.S. Export Administration Regulations, and may be subject to export control laws. You are not, and are not acting on behalf of: (A) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (B) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List. You are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, your United States export privileges.
12.5 Notice. All notices will be in writing and deemed given the second business day after mailing if sent by a recognized overnight courier (receipt requested). CrashPlan will send notices to you at the address in your Quote. You will send notices to CrashPlan Group LLC at: 400 South 4th Street, Suite 410, PMB 31083, Minneapolis, Minnesota 55415, United States of America, Attention: Legal Department. Except for notices of termination or indemnification, notices may also be delivered by email and are effective the business day after sending. CrashPlan will email billing-related notices to the billing contact that you designate. CrashPlan will email Offering-related notices to the system administrator that you designate. You will email all notices to CrashPlan at firstname.lastname@example.org.
12.6 Force Majeure. Neither party will be liable for any delay or failure to perform any obligations under these Terms (except for payment obligations), due to any cause beyond its reasonable control including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, supply failures by third party service providers (including internet service provider failures or delays, or denial of service attacks), earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
12.7 Entire Agreement. These Terms and Ancillary Documents constitute the entire agreement between you and CrashPlan. If any provision of these Terms is found to be unenforceable, the remaining provisions of these Terms will remain in full force and effect.
12.8 Waiver. No waiver of any provisions of these Terms shall be a further or continuing waiver of that term. CrashPlan’s failure to assert any right or provision under these Terms does not constitute a waiver of that right or provision.
12.9 Relationship of the Parties. The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture or agency relationship. Neither party has any authority to assume or create any obligation of any kind in the name of or on behalf of the other party.
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