CODE42 END USER LICENSE AND SUBSCRIPTION AGREEMENT (CONSUMER)
Effective Date: May 15, 2016
PLEASE READ THIS CODE42 END USER LICENSE AND SUBSCRIPTION AGREEMENT CAREFULLY. YOU WILL HAVE ACCEPTED THIS END USER LICENSE AND SUBSCRIPTION AGREEMENT IF YOU: 1) DOWNLOAD, INSTALL, ACTIVATE, SUBSCRIBE TO OR USE CODE42 PRODUCTS AND SERVICES, AS DEFINED BELOW; OR 2) CLICK THE “I ACCEPT” BUTTON ASSOCIATED WITH THIS END USER LICENSE AND SUBSCRIPTION AGREEMENT (“AGREEMENT”).
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION AND EXCEPT WHERE, PURSUANT TO SECTION 1(b) OF THIS AGREEMENT, YOUR RELATIONSHIP IS WITH CODE 42 AUSTRALIA PTY LTD (“Code42 Australia”), REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST CODE42 TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CODE42 ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ANNUALLY AT THE PUBLISHED ANNUAL RATE, IN ACCORDANCE WITH THE THEN-CURRENT TERMS SET OUT AT http://support.crashplan.com/doku.php/eula, UNLESS YOU CANCEL BEFORE THE START OF THE NEXT SUBSCRIPTION RENEWAL DATE. YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING US AT SUPPORT@CODE42.COM AND FURTHER INFORMATION MAY BE FOUND VIA https://support.code42.com/CrashPlan/4/Subscriptions/Canceling_Your_CrashPlan_Subscription. IF YOU CANCEL, YOUR SUBSCRIPTION WILL BE TERMINATED, AND YOUR USER DATA WILL BE DELETED FROM THE PUBLIC CLOUD PURSUANT TO THE PROCESS SET FORTH AT https://support.code42.com/CrashPlan/4/Subscriptions/Canceling_Your_CrashPlan_Subscription.
This Agreement is a legal agreement between you, the customer, and Code42 (“Code42”), as defined below, regarding the license, installation and subscription to use Code42's CrashPlan™ Software and/or the Public Cloud (hereinafter to each of, and collectively to, the “Code42 Products and Services”). In this Agreement, “you” and “your” refer to you, the customer, and your agents, and “we”, “us” and “our” refer collectively to Code42.
THE CODE42 PRODUCTS ARE FOR PERSONAL/NON-COMMERCIAL USE ONLY. IF YOU WISH TO LICENSE AND SUBSCRIBE TO CODE42 PRODUCTS AND SERVICES FOR COMMERCIAL OR BUSINESS PURPOSES, PLEASE REFER TO THE OTHER CODE42 PRODUCTS FOUND AT http://www.crashplan.com/business/compare.html.
THE CODE42 PRODUCTS AND SERVICES SUPPORT BACKUP STORAGE TO MULTIPLE LOCATIONS UTILIZING BOTH THE PRIVATE CLOUD AND THE PUBLIC CLOUD DESCRIBED BELOW. CODE42 STRONGLY ADVISES AND ENCOURAGES YOU TO LEVERAGE THE FULL CAPABILITIES OF THE CODE42 PRODUCTS AND SERVICES AND BACKUP YOUR DATA TO AT LEAST TWO DESTINATIONS AND TO UTILIZE BOTH THE PUBLIC CLOUD AND THE PRIVATE CLOUD FOR ADDITIONAL REDUNDANCY AND PROTECTION OF YOUR USER DATA.
CODE42 IS WILLING TO ALLOW THE LICENSE AND YOUR SUBSCRIPTION TO THE CODE42 PRODUCTS AND SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN CODE42 IS UNWILLING TO ALLOW THE LICENSE AND SUBSCRIPTION TO THE CODE42 PRODUCTS AND SERVICES AND YOU MUST NOT DOWNLOAD, INSTALL, ACTIVATE, OR USE THE CODE42 PRODUCTS AND SERVICES. IF YOU ARE UNDER 14 YEARS OF AGE, YOU MAY NOT LICENSE OR SUBSCRIBE TO THE CODE42 PRODUCTS AND SERVICES. IF YOU ARE BETWEEN THE AGES OF 14 AND 17 YEARS OF AGE YOU MAY ONLY LICENSE AND SUBSCRIBE TO THE CODE42 PRODUCTS AND SERVICES AFTER RECEIVING PRIOR CONSENT FROM YOUR PARENTS OR LEGAL GUARDIANS (AND, WHERE PURSUANT TO SECTION 1(b) OF THIS AGREEMENT YOUR RELATIONSHIP IS WITH CODE42 AUSTRALIA, YOUR PARENTS OR LEGAL GUARDIANS MUST ACCEPT AND ENTER INTO THIS AGREEMENT ON YOUR BEHALF). ANY LICENSE OR SUBSCRIPTION TO ANY CODE42 PRODUCTS AND SERVICES WITHOUT AGREEING TO THE TERMS OF THIS AGREEMENT IS STRICTLY PROHIBITED.
Code42 makes no representations that the Code42 Products and Services are appropriate for use in other locations outside of the United States. If you use the Code42 Products and Services in or from locations outside the United States, you are responsible for compliance with all Applicable Laws, unless otherwise required by the Australian Consumer Law, Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and Section 15(b) for Code42 Australia customers. If using the Public Cloud, your User Data will be stored in data centers located within the United States or Australia, as specified in Section 1.j. below. If you are located within the European Union, the model contract clauses located at http://www.code42.com/r/support/eula-eu-model-contract-clauses will apply and are incorporated herein by reference.
Code42 may make changes to this Agreement at its sole discretion. Changes will be communicated to you by us posting the new version of the Agreement on http://support.crashplan.com/doku.php/eula as otherwise determined by Code42 in its sole discretion, or as otherwise required by Applicable Law, and your acceptance of and/or continued use of any Code42 Products and Services after such notification of changes to this Agreement will constitute your acceptance of such changes. You may also be asked to re-acknowledge and reaccept this Agreement following any material changes. If you do not wish to be bound by such changes relating to your Code42 Products and Services, you may terminate your subscription of your Code42 Products and Services in accordance with Section 11 (Termination).
Throughout this Agreement, the following descriptions and definitions shall apply. More detailed information regarding Code42 Products and Services can be found at http://www.crashplan.com.
“Applicable Law” shall mean all Applicable Laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over Code42 and End-User, as applicable.
“Code42” means (i) Code42 Software, Inc., a Delaware corporation with its principal place of business at One Main Street SE #400, Minneapolis, Minnesota 55414 U.S.A. with respect to Code42 Products and Services that are shipped to, deployed or rendered inside and outside of the United States and all other countries, exclusive of offerings in the following subsection (ii), or (ii) with respect to all Code42 Products and Services that are shipped to, deployed or rendered within Australia or New Zealand, Code 42 Australia Pty LTD, a company incorporated under the laws of Australia, with its business address at 10/221 Miller St, Sydney NSW 2060, Australia and phone number +61 1800 042 042.
“CrashPlan” is the CrashPlan Software (or the free, ad-supported version if you select the limited evaluation license) that allows you to backup your User Data automatically in near real time to your Private Cloud or to Code42’s servers of the Public Cloud. Your subscription to CrashPlan is limited to one (1) Device using storage in the Public Cloud. While there is no current limitation for CrashPlan subscribers on the amount of User Data backed up to the Public Cloud, Code42 reserves the right in the future, in its sole discretion, to set commercially reasonable data storage limits (i.e., 5 TB) on all CrashPlan Software accounts.
“CrashPlan Family” has the same features as CrashPlan extended to include up to ten (10) Devices used by family members living under the same household (and offsite family members in college or that are military personnel) using the CrashPlan Products and Services. While there is no current limitation for CrashPlan Family subscribers on the amount of User Data backed up to the Public Cloud, Code42 reserves the right in the future, in its sole discretion, to set commercially reasonable data storage limits (i.e., 5 TB) on all CrashPlan Software accounts.
“CrashPlan Software” refers to each of, and collectively to CrashPlan, and CrashPlan Family, and any Modifications thereto, but excluding any Open Source Software.
“Device” means your computer, tablet, smartphone, or any other electronic device on which the CrashPlan Software is installed.
“Documentation” as used in this Agreement means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Code42 Products and Services and made available in any manner by Code42 with the Code42 Products and Services.
“Modifications” refers to additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to CrashPlan Software.
“Open Source Software” will have the meaning set forth in Section 10 below.
“Public Cloud” means the cloud-based off premises backup storage services provided by Code42 on Code42’s servers in data centers located in (i) Australia, if the Code42 Products and Services are shipped to, deployed or rendered in Australia or New Zealand, or (ii) the United States, if the Code42 Products and Services are shipped to, deployed or rendered in the United States or any other country. Notwithstanding the foregoing, all your support and account information are stored on servers located within the United States.
“Private Cloud” means your own external hard drive or other third-party storage devices that: (i) are running any form of the CrashPlan Software; (ii) have given you permission to backup to that Device; and (iii) are in the functional state and condition appropriate for receiving and storing your User Data (e.g., powered on, connected to the Internet or LAN, containing appropriate storage space, etc.). When utilizing the Private Cloud, your User Data flows directly from Device to Device.
“User Data” means all content and materials backed up, stored, indexed, or otherwise transmitted by you using the CrashPlan Software.
“Usage Data” means any and all aggregated information reflecting the access or use of the CrashPlan Software and Code42 Products or Services by or on behalf of you, including visit-, session-, or stream-data and any statistical or other analysis, system health information or data based on or derived from any of the foregoing.
2. GRANT OF LICENSE.
Unless otherwise noted in this Agreement, and to the fullest extent allowed under any Applicable Laws, all terms and conditions of this Agreement apply to the license and use of any and all Code42 Products and Services.
a. LIMITED EVALUATION GRANT OF LICENSE. Subject to the terms of this Agreement, Code 42 hereby grants you a nonexclusive, nontransferable, non-sublicenseable, revocable, limited license to use for evaluation purposes (i) one (1) copy of the CrashPlan Software per Device (except that CrashPlan Family can be used on up to ten (10) Devices); and (ii) excluding the users of the free ad-supported CrashPlan or CrashPlan Family, the use of the Public Cloud, without charge, for a period of thirty (30) days after you first activate your subscription. If you want to continue to use any version of CrashPlan Software, except the free ad-supported version, after the 30-day evaluation period, you must acquire from Code42, for a fee, a subscription for the CrashPlan Software and the Public Cloud, if applicable. Use of CrashPlan Software or the Public Cloud, if applicable, after the expiration of the 30-day evaluation period without acquiring such a license is outside the scope of this Agreement and a violation of U.S. and international copyright laws. If you do not purchase a subscription to CrashPlan Software and the Public Cloud, if applicable, after the evaluation period, your ability to use the Code42 Products and Services, including your ability to backup or retrieve backup User Data from the Public Cloud, will automatically cease to function 31 days after activation of your subscription; however, your free, ad-supported evaluation version of CrashPlan Software may continue to operate.
b. NON-EVALUATION GRANT OF LICENSE. Conditioned upon compliance with the terms and conditions of this Agreement, Code42 grants to you a nonexclusive, nontransferable, non-sublicenseable, limited license to use those Code42 Products and Services that you have validly licensed and subscribed to use, along with their related Documentation. For Crash Plan, you may only use a single copy of the applicable CrashPlan Software you license on one Device at a time; however, you are allowed to transfer each license of CrashPlan Software from one Device to another Device so long as you do not abuse this privilege (e.g., repeated transfers of the CrashPlan Software for the purpose of backing up multiple Devices without the purchase of multiple licenses or multiple transfers in any thirty (30) day period). What actions constitute an abuse of this policy is made in the sole discretion of Code42. For CrashPlan Family you may use the CrashPlan Software on up to ten (10) Devices.
c. TITLE AND LIMITATIONS. This is a limited license and subscription to use the Code42 Products and Services, not a transfer of title, notwithstanding any language to the contrary. Code42 shall retain ownership of all copies of the CrashPlan Software and Documentation and any Code42 Products and Services and all related intellectual property rights (“IP Rights”). You are granted no licenses to any intellectual property rights other than as expressly granted herein. You acknowledge that the CrashPlan Software, Documentation and the Code42 Products and Services contain trade secrets of Code42, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. You agree that you shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Code42 in and to the IP Rights. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to: (i) transfer, assign or sublicense your license or subscription rights to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, the CrashPlan Software or any Code42 Products and Services or to create derivative works based upon the CrashPlan Software or any Code42 Products and Services, or permit third parties to do the same, except as otherwise expressly permitted under Applicable Law, including any rights under the Australian Copyright Act 1968 (Cth) which may not be excluded by agreement between the parties; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the CrashPlan Software or any Code42 Products and Services to human-readable form, except to the extent otherwise expressly permitted under Applicable Law notwithstanding this restriction, including any rights under the Australian Copyright Act 1968 (Cth) which may not be excluded by agreement between the parties; (iv) use or permit the CrashPlan Software or any Code42 Products and Services to be used for commercial use or to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Code42; (v) disclose, provide, or otherwise make available trade secrets contained within the CrashPlan Software, Documentation and any Code42 Products and Services in any form, to any third party without the prior written consent of Code42; or (vi) use the CrashPlan Software or Code42 Products and Services to develop any software application or similar products and services.
d. SOFTWARE, UPGRADES, AND ADDITIONAL COPIES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT SUBJECT TO ANY RIGHTS YOU HAVE UNDER THE AUSTRALIAN COPYRIGHT ACT 1968 (CTH) THAT CANNOT BE EXCLUDED BY AGREEMENT BETWEEN CODE42 AUSTRALIA AND YOU: (1) YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR MODIFICATIONS TO THE CRASHPLAN SOFTWARE OR DOCUMENTATION UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR MODIFICATION, ALREADY HOLD A VALID LICENSE AND SUBSCRIPTION TO THE ORIGINAL CRASHPLAN SOFTWARE AND HAVE PAID THE APPLICABLE FEE FOR THE MODIFICATION OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
e. ADVERTISING AND USE OF COMPUTATIONAL RESOURCES (CRASHPLAN). The following is applicable to users of the free ad-supported version of the CrashPlan Software. As consideration for your license and subscription under this Agreement, you agree that (i) Code42 and its business partners have a right to provide promotional offers, advertising and other information to you in connection with your use of the free, ad-supported version of CrashPlan, and that (ii) Code42 has a right to allow the CrashPlan Software and the Code42 Products and Services to utilize the processor, bandwidth and storage hardware on your Device in association with the Code42 Products and Services. YOU MAY OPT OUT OF RECEIVING ADVERTISING FROM CODE42 AND ITS BUSINESS PARTNERS AT ANY TIME BY UPGRADING TO A FEE BASED SUBSCRIPTION VERSION OF THE CODE42 PRODUCTS AND SERVICES OR BY DISCONTINUING YOUR USE OF THE CODE42 PRODUCTS AND SERVICES.
f. FEEDBACK. To the extent you provide any suggestions, comments or other feedback related to the Code42 Products and Services, including but not limited to the CrashPlan Software, to Code42 or its authorized third party agent(s) (“Feedback”), you hereby grant Code42 a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable license to use, adapt, copy, communicate, reproduce, modify, display, exploit, publish, re-distribute, broadcast, transmit, create derivative works from and incorporate in other works such Feedback or subject matter thereof in any way and without limitation.
3. ACCESS TO CODE 42 PRODUCTS AND SERVICES.
In order to use Code42 Products and Services, you must provide all Devices, equipment and software necessary to use Code42 Products and Services that are not a part of the Code42 Products and Services, including, but not limited to, a Device that is in working order running an operating system compatible with the Code42 Products and Services and that is suitable for use in connection with the Code42 Products and Services. You are responsible for ensuring that your Device, equipment and/or software do not disturb or interfere with Code42's operations or the operations of other users of Code42 Products and Services. If any Modification to Code42 Products and Services requires changes in your Device, equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance Code42 Products and Services, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
a. PRICING INFORMATION. Pricing and subscription information for Code 42 Products and Services is provided at https://www.crashplan.com/consumer/store.vtl (“Pricing Policy”). Code 42 may change the price for the Code42 Products and Services from time to time by updating the Pricing Policy. Such changed price will take effect after the expiry of the then-current paid for period (i.e., the term that you have already paid for). If you do not wish to be bound by such changed price relating to your Code42 Products and Services, you may terminate your subscription of your Code 42 Products and Services in accordance with Section 11 (Termination). Your continued use of the Code 42 Products and Services after the communication of such price change to you and subsequent subscription term renewal constitutes an acceptance of such new price.
b. PAYMENT TERMS. Code42 will offer you the opportunity to subscribe to the monthly or annual subscription fee, as applicable. After the free 30-day evaluation period, if you do not sign up, for a fee-based version of the Code42 Products and Services, Code42 will remove all User Data from the Public Cloud, however you will still be permitted to use the free ad-supported version of CrashPlan Software and backup User Data to your Private Cloud, subject to the terms of this Agreement, for as long as this service is made available to you by Code42, in Code42’s sole discretion. BY ACCEPTING THIS AGREEMENT AND USING CODE42 PRODUCTS AND SERVICES, YOU EXPRESSLY AUTHORIZE CODE42 TO BILL AND COLLECT PAYMENT FROM YOU BY ANY PAYMENT METHOD YOU REGISTER WITH CODE42 INCLUDING, BUT NOT LIMITED TO, YOUR CREDIT CARD, BANK ACCOUNT, OR ONLINE PAYMENT SYSTEM SUCH AS PAYPAL.
If you agree to pay the fee for subscribing to the Code42 Products and Services, such fee will be charged by the company designated by Code42 in accordance with the payment method you have chosen for your purchase. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorized to make such purchase and that you are the holder of such card (i.e., that the card is issued in your name). YOU CONSENT TO CODE42 PROVIDING SUCH PAYMENT INFORMATION TO ITS THIRD PARTY PAYMENT PROCESSOR FOR THE SOLE PURPOSE OF PROCESSING YOUR PURCHASES. All prices stated on the Code42 website are inclusive of any applicable sales taxes and fees and are subject to change at any time in accordance with Section 4(a) (Pricing Information). Code42 accepts a variety of different payment methods, so please check the Code42 website https://www.crashplan.com/consumer/store.vtl for the best way for you to pay. It is your responsibility to maintain proper payment and billing information with Code42. Failure to maintain proper and up-to-date payment and billing information will result in the termination of your subscription to the Code42 Products and Services in accordance with Section 11 (Termination).
YOUR SUBSCRIPTION TO THE CODE42 PRODUCTS AND SERVICES WILL AUTOMATICALLY RENEW AT THE END OF EACH BILLING CYCLE AT THE THEN-CURRENT FEES UNLESS YOU TERMINATE YOUR SUBSCRIPTION PRIOR TO THE END OF SUCH BILLING CYCLE IN ACCORDANCE WITH SECTION 11 (TERMINATION). UNLESS YOU LOG INTO YOUR ACCOUNT TO DESIGNATE OTHERWISE, SUCH RENEWAL WILL ALWAYS BE FOR THE LENGTH OF YOUR PRIOR SUBSCRIPTION TERM. AT THE TIME OF RENEWAL, THE PAYMENT METHOD YOU HAVE DESIGNATED TO BE CHARGED FOR THE SUBSCRIPTION OF THE CODE42 PRODUCTS AND SERVICES WILL AUTOMATICALLY BE CHARGED THE THEN-CURRENT FEES FOR THE APPLICABLE SUBSCRIPTION.
SHOULD YOU CHOOSE TO CANCEL YOUR SUBSCRIPTION, YOU MAY CANCEL VIA THE PROCESS SET FORTH AT HTTPS://SUPPORT.CODE42.COM/CRASHPLAN/4/SUBSCRIPTIONS/CANCELING_YOUR_CRASHPLAN_SUBSCRIPTION.
c. GST. This Section 4(c) applies if, pursuant to Section 1(b) of this Agreement, your relationship is with Code42 Australia. Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST. If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment. Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement. If this Agreement requires a party (the “First Party“) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (“Reimbursable Expense”) suffered or incurred by the other party (the “Other Party”), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of: (a) the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and (b) if the Other Party's recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount. For the purposes of this Section 4(c), the expressions “Consideration“, “GST“, “Input Tax Credit“, “Recipient“, “Supply“, “Tax Invoice“ and “Taxable Supply“ have the meanings given to those expressions in the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth), and “Supplier“ means any party treated by the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth) as making a Supply under this Agreement.
5. USER DATA STORAGE AND SECURITY.
a. DATA STORAGE. Regardless of whether your User Data is stored in the Public Cloud or the Private Cloud, only the files you select to for backup will be stored. Code42 Products and Services are for backup purposes only and not intended to be used for primary or archived storage of your User Data.
(i) Private Cloud. You decide where your User Data is stored and backed up. User Data stored to the Private Cloud will require you to (x) gain authorizations from another CrashPlan Software user to backup User Data to their Device; (y) supply another Device validly using the Code42 Products and Services; and/or (z) supply other hardware or equipment (i.e. external hard drive). You are in control of your Private Cloud and you are solely responsible for all User Data stored to your Private Cloud, including without limitation, any loss of User Data due to performance, compatibility or reliability issues associated with your Private Cloud, unless otherwise provided under the Australian Consumer Law and Section 15(b) of this Agreement for Code42 Australia customers.
(ii) Public Cloud. Code42 decides where your User Data is stored and backed up. User Data stored to the Public Cloud is stored on Code42’s servers and User Data is encrypted prior to being transmitted to Code42. The Public Cloud is designed to work with Devices that are in-use and frequently connected to the Internet. When utilizing the Public Cloud, your Device must connect to the Public Cloud at least once every six (6) months. Any User Data related to any Device that does not connect to the Public Cloud once every six (6) months may be deleted by Code42 in its sole discretion.
b. DATA SECURITY. CrashPlan Software provides three (3) levels of data security as described below:
Data Security Level
Security Mode: Email Protected (Default)
Level of Data Protection: Low
Data Encryption: Yes
Additional Details: Data security key
Code42 retains the data security key to your encrypted User Data. You have access to the data security key by logging into your account and providing the correct password for your account. Your account password is stored with Code42. UNDER THIS DATA SECURITY LEVEL, SECURITY IS ONLY AS STRONG AS YOUR LOGIN CREDENTIALS AND/OR ACCESS TO YOUR EMAIL ACCOUNT.
Security Mode: Password Protected
Level of Data Protection: High
Data Encryption: Yes
Additional Details: Data security key & user provided data password
Code42 retains a password protected data security key, however, you must
enter a unique password to unlock your data security key. IF YOU LOSE YOUR PASSWORD, YOUR ENCRYPTED USER DATA WILL NOT BE RECOVERABLE WITHOUT A PASSWORD.
Security Mode: Custom Key Protection
Level of Data Protection: Higher
Data Encryption: Yes
Additional Details: User provided custom data security key
Code42 does not retain your data security key. SHOULD YOU LOSE YOUR DATA SECURITY KEY, YOUR ENCRYPTED DATA WILL NOT BE RECOVERABLE. WE ADVISE YOU TO STORE YOUR DATA SECURITY KEY IN MULTIPLE SECURE OFFSITE LOCATIONS.
c. ACCOUNT DETAILS AND PASSWORD. You agree to keep all account and password details private and to not share them with anyone else in order to prevent unauthorized access to your account, your password, and/or your User Data. Code42 is not liable for any loss or damage arising from any access to, sharing or use of your account, your password or your User Data, except as otherwise provided under the Australian Consumer Law and Section 15(b) of this Agreement for Code42 Australia customers. If you believe there has been any unauthorized access to your account, you must notify Code42 immediately at https://helpdesk.code42.com/home.
d. DELETED FILES. By default, during the subscription term, all deleted files are maintained by Code42 for a period of time of at least thirty (30) days. Notwithstanding the foregoing, Code42 may, in its sole discretion, modify the minimum period of time in order to manage total storage needs across its customer base. Your account settings may permit you to customize the period of time Code42 would maintain a deleted file; however, such period of time may be limited by Code42 as set forth herein.
e. VERSIONING. You may customize versioning in your account settings in accordance with the parameters of the Public Cloud configuration permitted by Code42. Code42 reserves the right, in its sole discretion, to revise what configurations are permitted, as well as to revise your versioning configuration with reasonable notice.
e. STORAGE LOCATIONS OF YOUR DATA. Any User Data that you transmit or store using the Code42 Products and Services will be transferred to and stored in servers located in countries that may have less protective data protection laws than the country in which you are located (including without limitation the United States). These servers are owned and maintained by a third party processor which Code42 has required, by contract, to safeguard your User Data. If you have any questions about how your User Data is being handled, please contact Code42 using the contact details in Section 22.
f. MANAGEMENT OF STORAGE USAGE. Code42 may, in its sole discretion, take appropriate and reasonable actions to manage End-User’s storage utilization in the Public Cloud. Such actions include, but are not limited to, actions to prevent certain file types from being stored in the Public Cloud, management of data de-duplication and maximum compression of User Data stored in the Public Cloud, and/or requiring that End User’s User Data enter uninterruptible maintenance at least once every ninety (90) calendar days.
g. EMAIL NOTIFICATIONS. During the subscription term, Code42 may send you email notifications related to Your storage usage, actions Code42 may be making with respect to Your storage usage, and/or other operational requirements. YOU MAY NOT UNSUBSCRIBE TO SUCH EMAIL NOTIFICATIONS AND BY ACCEPTING THE TERMS OF THIS EULA, YOU HEREBY CONSENT TO THE RECEIPT OF SUCH EMAIL NOTIFICATIONS.
h. SURVEILLANCE. The Code42 Software may contact Code42 to verify the status of any Code42 Products and Services and to confirm that you are using the licensed software in accordance with the terms and conditions of this EULA. Devices with installed Code42 Software may also be tracked by Code42 (such as via Internet Protocol address) to locate where that Device is located so that End-User and its Code42 Users can locate their Devices.
i. SECURITY BREACH OR CYBER-ATTACK. Code42 may, without liability except as otherwise provided by the Australian Consumer Law and Section 15(b) for Code42 Australia customers, suspend or terminate any or all Code42 Products and Services to some or all of the Code42 Users: (i) following a possible or actual security breach or cyber-attack on Code42; (ii) in order to protect Code42’s network in the Public Cloud; (iii) if required by a governmental entity or law enforcement agency; (iv) if a Code42 User is using a Device that is defective or illegal; (v) if a Device is causing technical or other problems to the Public Cloud; (vi) upon the termination or expiration of a Subscription Term; or (vii) as otherwise allowed under this EULA.
j. USER DATA.
CODE42 ACKNOWLEDGES THAT YOU HAVE ALL RIGHT, TITLE, AND INTEREST IN THE USER DATA (AS BETWEEN YOU AND CODE42), AND IN NO WAY DOES THIS EULA GIVE CODE42 ANY OWNERSHIP RIGHTS TO THE USER DATA. YOU SHOULD ONLY USE THE CODE42 PRODUCTS AND SERVICES WITH USER DATA TO WHICH YOU HAVE FULL RIGHT, TITLE OR LICENSE. You represent and warrants that your use of the Code42 Products and Services and related backup to and storage of User Data in the Public Cloud, and any use of User Data by Code42 in performing its obligations in accordance with this Agreement, complies with all Applicable Laws, including those that relate to data privacy, data security, international communication and the exportation of technical, personal or sensitive data (and, with respect to Code42 Australia customers, including the Australian Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in Schedule 1 of the Australian Privacy Act 1988 (Cth)). You must comply with the requirements of any such laws, and not do or omit to do anything in connection with the User Data that will cause Code42 to breach any such laws. Submission of unencrypted User Data to Code42 shall be at Your sole discretion and at your own risk, and Code42 assumes no responsibility or liability for receipt of such User Data (except as otherwise provided under the Australian Consumer Law and Section 15(b) of this EULA for Code42 Australia customers). You further acknowledge that Code42 may anonymize Usage Data to use for statistical purposes and share samples of such anonymized Usage Data with other third party security-related researchers, vendors and other customers.
6. PRIVACY AND CUSTOMER INFORMATION.
a. METHOD OF PAYMENT INFORMATION. If you subscribed to the Code42 Products and Services, we may collect, store and share your method of payment for the Code42 Products and Services you have purchased.
b. ACCOUNT CREDENTIALS. Your e-mail address in combination with your password, allows Code42 to verify your identity. CODE42 EXPLICITLY DISCLAIMS ALL LIABILITY, EXCEPT AS OTHERWISE PROVIDED UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15(B) OF THIS EULA FOR CODE42 AUSTRALIA CUSTOMERS, FOR ANY LOST, STOLEN, OR DELETED USER DATA, INCLUDING ANY USER DATA DELETED REMOTELY DUE TO THE COMPROMISE OF YOUR PASSWORD, YOUR ACCOUNT CREDENTIALS OR ACCESS TO YOUR E-MAIL ACCOUNT.
c. INFORMATION COLLECTED VIA THE INTERNET. CrashPlan Software may automatically use the Internet to search for Modifications to the Code42 Products and Services. Such Modifications may install automatically. Code42 Products and Services may also contact Code42 to verify the status of any subscription and right to use the Code42 Products and Services. Devices with installed CrashPlan Software may also be tracked by Code42 (such as via Internet Protocol address) to locate where on the Internet that computer is located so that you and others you invite to backup data can locate your computer.
d. CODE42 PRODUCTS' LICENSE KEY. Code42 Products may require activation via a license key. Code42 Products and Services requiring activation by a license key will require an Internet connect to complete activation. Activation via a license key will result in the computer installed with Code42 Products and Services to transmit the license key to Code42 via the Internet for activation of the Code42 Products and Services.
e. PRIVATE CLOUD. By default, any unique User Data stored in your Private Cloud is encrypted before transmission and is not decrypted at destination unless you submit a request to decrypt and restore your User Data to the Device you are restoring your User Data. Please see Section 5 for more information on User Data Security.
f. PUBLIC CLOUD. By default, unique User Data submitted to the Public Cloud is encrypted before transmission and is not decrypted by Code42 unless you submit a request to decrypt and restore your User Data. Your User Data will remain encrypted until you restore the User Data to your Device. Please see Section 5 for more information on Data Security.
For continuity of performance, you agree that Code42 may, at any time in its sole discretion, access the CrashPlan Software on your Device, and/or cause the CrashPlan Software to contact Code42, in order to provide Modifications. All Modifications, will be related to the Code42 Products and Services and may contain Open Source Software (see Section 10 for more information on Open Source Software).
8. UNINSTALLING CRASHPLAN SOFTWARE.
You may uninstall CrashPlan Software by using any uninstall utility that accompanies the installed CrashPlan Software or through the uninstall mechanism provided by your compatible operating system on your Device. UNINSTALLING THE CRASHPLAN SOFTWARE WILL CEASE ALL FUNCTIONALITY OF THE CRASHPLAN SOFTWARE. UNINSTALLING CRASHPLAN SOFTWARE WILL RESULT IN YOU NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED TO THE PUBLIC CLOUD USING THE CRASHPLAN SOFTWARE AND LIMITED ACCESS TO ANY USER DATA STORED IN YOUR PRIVATE CLOUD. ADDITIONALLY, UNINSTALLING CRASHPLAN WILL RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP USER DATA FROM THAT DEVICE. Code42 does not warrant that any and all portions of the CrashPlan Software will be removed by any uninstall utility or the uninstall mechanism of your operating system. Code42 does not warrant that all of your Device's software content, including but not limited to the operating system, will regress to a state of operation, including but not limited to settings and options, that are identical to those that existed prior to the installation of the CrashPlan Software or your use of the Code42 Products and Services. You remain bound by the terms of this Agreement, including but not limited to its disclaimer of warranties, limitation of liability, exclusive remedy, intellectual property, and ownership clauses even after you uninstall the CrashPlan Software and discontinue your use of the Code42 Products and Services.
9. PROPRIETARY NOTICES.
You agree to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the CrashPlan Software and the Code42 Products and Services in the same form and manner that such copyright and other proprietary notices are included on the CrashPlan Software and the Code42 Products and Services. Except as expressly authorized in this Agreement, and subject to any rights Code42 Australia customers may have under the Australian Copyright Act 1968 (Cth) that cannot be excluded by agreement between the parties, you shall not make any copies or duplicates of any CrashPlan Software or the Code42 Products and Services without the prior written permission of Code42.
10. OPEN SOURCE SOFTWARE.
The Code42 Products and Services may contain or be provided with components subject to the terms and conditions of open source software licenses (“Open Source Software”). A representative list of Open Source Software can be found at http://www.code42.com/legal/open-source/.
11. TERMINATION/RIGHT TO REFUND.
This Agreement shall be effective as of your acceptance of this Agreement and/or your use of the Code42 Products and Services and shall continue in effect until terminated by either party or otherwise terminated as set forth in this Agreement. Either party may, at its election and in its sole discretion, terminate this Agreement and any subscription to the Code42 Products and Services at will, at any time. Should Code42 terminate your subscription for convenience, you shall receive a prorated refund as of the date of termination of any fees prepaid for your subscription. You may also terminate this Agreement where Code42 changes the terms of this Agreement and, pursuant to your rights under this Agreement, you notify Code42 by emailing us at SUPPORT@CODE42.COM stating that you do not wish to be bound by those changes, in which case the Agreement will be terminated upon receipt of your notice. Code42 specifically reserves the right to terminate this Agreement and your use of Code42 Products and Services immediately, without notice from Code42, if you fail to comply with any provision of this Agreement, your use any Code42 Product and Services in a way not intended by Code42, or you abuse your use of Code42 Products and Services. Code42 is further entitled to obtain injunctive relief if your use of the Code42 Products and Services is in violation of any restrictions set forth in this Agreement, including without limitation any license restrictions. Upon termination, you shall destroy all copies of the CrashPlan Software and Documentation in your possession or control. ACCORDING TO THIS SECTION OR OTHER SECTIONS OF THIS AGREEMENT, CODE42 MAY TERMINATE YOUR ABILITY TO CONTINUE TO USE CODE42 PRODUCTS AND SERVICES. THE TERMINATION OF YOUR ABILITY TO CONTINUE TO USE CODE42 PRODUCTS AND SERVICES WILL CAUSE THOSE CODE42 PRODUCTS AND SERVICES TO CEASE FUNCTIONING AND RESULT IN YOU NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED USING THE PUBLIC CLOUD. FOLLOWING TERMINATION, YOU WILL HAVE LIMITED ACCESS TO YOUR DATA STORED IN YOUR PRIVATE CLOUD, HOWEVER THERE IS NO GUARANTY THAT THIS SERVICE WILL CONTINUE OR BE AVAILABLE TO YOU. TERMINATING YOUR USE OF THE CODE42 PRODUCTS AND SERVICES WILL ALSO RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP USER DATA FROM THAT DEVICE. The termination of this Agreement for any reason shall not affect: a) unless otherwise provided by Applicable Law, the obligations of the parties to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or b) any other obligation or liability which either party has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination. UNLESS OTHERWISE PROVIDED HEREIN, PERMITTED BY CODE42’S PAYMENT PROCESSOR, OR REQUIRED BY APPLICABLE LAW, INCLUDING THE AUSTRALIAN CONSUMER LAW FOR CODE42 AUSTRALIA CUSTOMERS, ALL FEES ARE NON-CANCELABLE AND NON-REFUNDABLE.
YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ANNUALLY AT THE PUBLISHED ANNUAL RATE, UNLESS YOU CANCEL BEFORE THE START OF THE NEXT SUBSCRIPTION RENEWAL DATE. YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING US AT SUPPORT@CODE42.COM. FURTHER INFORMATION CAN BE FOUND AT HTTPS://SUPPORT.CODE42.COM/CRASHPLAN/4/SUBSCRIPTIONS/CANCELING_YOUR_CRASHPLAN_SUBSCRIPTION. IF YOU CANCEL, YOUR SUBSCRIPTION WILL BE TERMINATED, AND YOUR USER DATA WILL BE DELETED FROM THE PUBLIC CLOUD, PURSUANT TO THE PROCESS SET FORTH AT https://support.code42.com/CrashPlan/4/Subscriptions/Canceling_Your_CrashPlan_Subscription.
12. ALLOCATION OF RISK.
You acknowledge and agree that Code42 has set its prices and entered into this Agreement and your subscription to the Code42 Products and Services in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
13. LIMITED WARRANTY.
Code42 warrants that, for a period of ninety (90) days from the date of the first purchase of your subscription to the Code42 Products and Services that such Code42 Products and Services, in the form delivered by Code42, will substantially conform to and perform substantially in accordance with Code42's published Documentation, to the extent such exists, when installed and operated in accordance with Code42 specifications, and Code42 will endeavor to correct any failure of the Code42 Products and Services to so conform or perform provided Code42 receives written notice from you within said ninety (90) day warranty period. In the event that such failure is unable to be corrected to conform or perform, Code42 will terminate your subscription with respect to such non-conformance, or with respect to the Code42 Products and Services if commercially unreasonable to fix, and refund to you a prorated portion of any fees prepaid for the Code42 Products and Services related to such non-conformance, or for the Code42 Products and Services, if applicable, from the date on which you notified Code42 of the breach of warranty. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE42 PRODUCTS AND SERVICES FURNISHED BY CODE42 AND ACCEPTED BY YOU ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CODE42. CODE42 DOES NOT WARRANT THAT THE CODE42 PRODUCTS AND SERVICES OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, WILL BE COMPATIBLE WITH YOUR DEVICES, OR THAT THE OPERATION OF THE CODE42 PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CODE42 PRODUCTS AND SERVICES IS WITH YOU. WITH RESPECT TO CODE42 AUSTRALIA CUSTOMERS, THE LIMITATIONS IN THIS SECTION 13 ARE SUBJECT TO YOUR RIGHTS UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15(B) OF THIS EULA.
14. LIMITATION OF REMEDIES.
EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, INCLUDING CODE42 AUSTRALIA CUSTOMERS’ RIGHTS UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15(B) OF THIS EULA, YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THE LIMITED WARRANTY SET FORTH IN SECTION 13 HEREIN.
THE SUPPLY OF CODE42 PRODUCTS AND SERVICES BY CODE42 AUSTRALIA TO ITS CUSTOMERS UNDER THIS EULA MAY BE SUBJECT TO THE AUSTRALIAN CONSUMER LAW. WHERE THIS IS THE CASE, THE FOLLOWING STATEMENT APPLIES IN RESPECT OF ANY FAILURE TO COMPLY WITH THE CONSUMER GUARANTEES UNDER THE AUSTRALIAN CONSUMER LAW:
ANY GOODS SUPPLIED HEREUNDER COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. YOU ARE ENTITLED TO A REPLACEMENT OR REFUND FOR A MAJOR FAILURE AND COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. YOU ARE ALSO ENTITLED TO HAVE THE GOODS REPAIRED OR REPLACED IF THE GOODS FAIL TO BE OF ACCEPTABLE QUALITY AND THE FAILURE DOES NOT AMOUNT TO A MAJOR FAILURE.
15. LIMITATION OF CODE42 LIABILITY.
IN NO EVENT WILL CODE42 BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE42 UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF CODE42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF CODE42 IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE42 UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO CODE42 FOR YOUR SUBSCRIPTION OF CODE42 PRODUCTS AND SERVICES UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION 15, WITH RESPECT TO CODE42 AUSTRALIA CUSTOMERS, ARE SUBJECT TO THE AUSTRALIAN CONSUMER LAW AND SECTION 15(B) OF THIS EULA.
NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONSUMER GUARANTEE, RIGHT OR REMEDY CONFERRED ON A PARTY BY THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LAW THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF CODE42 FOR A BREACH OF A NON-EXCLUDABLE GUARANTEE REFERRED TO IN THIS SECTION 15(b) IS LIMITED, AT CODE42'S OPTION, TO: (i) IN THE CASE OF GOODS, ANY ONE OR MORE OF THE FOLLOWING: (1) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (2) THE REPAIR OF THE GOODS; (3) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR (4) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (ii) IN THE CASE OF SERVICES: (1) THE RESUPPLYING OF THE SERVICES AGAIN; OR (2) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
16. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.
Subject to the limitations of Section 15, and only if User has purchased and is lawfully using the CrashPlan Software, Code42 will, at its expense, defend any suit or claim brought against you and will indemnify you against any settlement agreed to by Code42 or any award of damages and costs against you by a final court judgment based on a claim that your use of the Code42 Software infringes or violates any U.S. copyright, trademark or trade secret rights , or any patent rights of a third party issued as of the effective date of this Agreement, provided that: a) you notify Code42 promptly in writing of any notice of any such claim; b) you cooperate with Code42 in all reasonable respects in connection with the investigation and defense of any such claim; c) Code42 shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should the Code42 Products and Services become, or in Code42's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit Code42, at Code42's option and expense, either to: (i) procure for you the right to continue using the affected Code42 Products and Services; (ii) replace or modify the same so that it becomes non-infringing; or (iii) terminate this Agreement with respect to such Code42 Products and Services and refund to you a prorated amount of the subscription fees prepaid to Code42 from the date on which you notified Code42 in writing of any such claims. Notwithstanding anything herein to the contrary, however, Code42 shall have no obligation or liability under any provision of this Section if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon use of an Code42 Products and Services in a manner other than that for which it was furnished by Code42, upon any Code42 Products and Services which has been modified by or for you in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by Code42.
17. INDEMNITY BY YOU.
You will, to the fullest extent permitted by law, indemnify Code42 and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “Code42 Indemnified Parties”) against and hold the Code42 Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of you which gives rise to claims against Code42 Indemnified Parties by third parties.
18. U.S. GOVERNMENTAL USER PURCHASES.
The Code42 Products and related Documentation are “Commercial Terms,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
19. YOUR OBLIGATIONS.
You represent and warrant that (a) you are the owner or an authorized user of the Device on which the Code42 Products are installed and any User Data used in conjunction with the Code42 Products and Services; (b) you shall use the Code42 Products and Services only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; (c) you shall use the Code42 Products and Services for your personal use only; and (d) You understand and agree that Your use of the Code42 Products and Services will be compliant with the Product Lifecycle Policy set forth at https://support.code42.com/Terms_And_Conditions/Product_Lifecycle_Policy as may be updated from time to time. Except as expressly permitted by this EULA, You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Code42 Products and Services except to uninstall the same as provided herein.
20. DISPUTE RESOLUTION BY BINDING ARBITRATION: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Section 20 does not apply if, pursuant to Section 1(b) of this Agreement, your relationship is with Code42 Australia.
AGREEMENT TO ARBITRATE. This Section 20 is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Code42, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Code42 Products and Services, any advertising, any aspect of the relationship or transactions between you and Code42, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against Code42 on your behalf. You agree that, by entering into this Agreement, you and Code42 are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF. YOU AND CODE42 AGREE THAT BOTH YOU AND CODE42 MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CODE42 AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
PRE-ARBITRATION DISPUTE RESOLUTION. Code42 is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Code42 should be sent to the address set forth in Section 21 below (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Code42 and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Code42 may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Code42 or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Code42 is entitled.
ARBITRATION PROCEDURES. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Code42 and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Code42 agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
COSTS OF ARBITRATION. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Code42 will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Code42 will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Code42 will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
CONFIDENTIALITY. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
SEVERABILITY. Without limiting the severability provision in Section 20 of the this Agreement, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section 20(b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 20(b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Agreement will continue to apply.
FUTURE CHANGES TO ARBITRATION AGREEMENT. Notwithstanding any provision in this Agreement to the contrary, Code42 agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Code42 written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between you and Code42 in accordance with the language of this Arbitration Agreement.
21. GENERAL PROVISIONS.
a. ENFORCEMENT/CHOICE OF LAW. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement is illegal or unenforceable under Applicable Law, the remainder of the provision shall be deemed amended to approximate as closely as possible the effect of the original terms. All other provisions of this Agreement shall continue in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If, pursuant to Section 1(b) of this EULA, Your relationship is with Code42 Software, Inc., then this EULA shall be deemed to have been made in, and shall be construed pursuant to the Applicable Laws of the State of Minnesota, excluding its conflicts of law rules, and any action will be commenced exclusively in a state or federal court situated within the state of Minnesota, and End-User irrevocably submits to the jurisdiction and venue of any such court for such purpose. If, pursuant to Section 1(b) of this EULA, Your relationship is with Code 42 Australia Pty LTD, then this EULA shall be deemed to have been made in, and shall be construed pursuant to the laws of Victoria, Australia, and any action will be commenced exclusively in the courts of Victoria and the Commonwealth of Australia, and End-User irrevocably submits to the jurisdiction and venue of any such courts for such purpose.
c. CORRECTION OF ERRORS AND INACCURACIES. This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. Code42 reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice. Code42 does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.
d. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.
e. ASSIGNMENT AND RESALE. Your rights under this Agreement are not assignable or transferable. You agree not to resell the Code42 Products and Services or any portion thereof. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No third-party beneficiaries are intended or shall be construed as created by virtue of this Agreement.
f. EXPORT COMPLIANCE. You may not use or otherwise export or re-export the Code42 Products and Services except as authorized by United States law. In particular, but without limitation, the Code42 Products and Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Code42 Products, You represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
22. QUESTIONS OR ADDITIONAL INFORMATION. If you have any questions regarding this Agreement or wish to obtain additional information, please send a letter via U.S. Mail to Code 42 at 1 Main Street S.E. #400, Minneapolis, Minnesota 55414.
Last Modified: May 15, 2016.
Copyright 2006-2016, Code42 Software, Inc. All Rights Reserved.