CODE 42 END USER LICENSE AND SUBSCRIPTION AGREEMENT (CRASHPLAN/CRASHPLAN+)
Effective Date: January 16, 2013
PLEASE READ THIS 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 CODE 42 PRODUCTS AND SERVICES; OR 2) CLICK THE “I ACCEPT” BUTTON ASSOCIATED WITH THIS END USER LICENSE AND SUBSCRIPTION AGREEMENT (“AGREEMENT”).
This Agreement is a legal agreement between you, the customer, and Code 42 Software, a Delaware corporation (“Code 42”) regarding the license, installation and subscription to use Code 42's CrashPlan, CrashPlan+, CrashPlan+ Unlimited, CrashPlan+ Family Software and/or the Public Cloud (hereinafter to each of, and collectively to, the “Code 42 Products and Services”). In this Agreement, “you” and “your” refer to you, the customer, and his or her agents, and “we”, “us” and “our” refer collectively to Code 42.
THE CODE 42 PRODUCTS ARE FOR PERSONAL/NON-COMMERCIAL USE ONLY. IF YOU WISH TO LICENSE AND SUBSCRIBE TO CODE 42 PRODUCTS AND SERVICES FOR COMMERCIAL OR BUSINESS PURPOSES, PLEASE REFER TO THE CODE 42 PRO AND PROe PRODUCTS FOUND http://www.crashplan.com/business/compare.html
THE CODE 42 PRODUCTS AND SERVICES SUPPORT BACKUP STORAGE TO MULTIPLE LOCATIONS UTILIZING BOTH THE PRIVATE CLOUD AND THE PUBLIC CLOUD DESCRIBED BELOW. CODE 42 STRONGLY ADVISES AND ENCOURAGES YOU TO LEVERAGE THE FULL CAPABILITIES OF THE CODE 42 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.
CODE 42 IS WILLING TO ALLOW THE LICENSE AND YOUR SUBSCRIPTION TO THE CODE 42 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 CODE 42 IS UNWILLING TO ALLOW THE LICENSE AND SUBSCRIPTION TO THE CODE 42 PRODUCTS AND SERVICES AND YOU MUST NOT DOWNLOAD, INSTALL, ACTIVATE, OR USE THE CODE 42 PRODUCTS AND SERVICES. IF YOU ARE UNDER 14 YEARS OF AGE, YOU MAY NOT LICENSE OR SUBSCRIBE TO THE CODE 42 PRODUCTS AND SERVICES. IF YOU ARE BETWEEN THE AGES OF 14 AND 17 YEARS OF AGE YOU MAY ONLY LICENSE AND SUBSCRIBE TO THE CODE 42 PRODUCTS AND SERVICES AFTER RECEIVING PRIOR CONSENT FROM YOUR PARENTS OR LEGAL GUARDIANS. ANY LICENSE OR SUBSCRIPTION TO ANY CODE 42 PRODUCTS AND SERVICES WITHOUT AGREEING TO THE TERMS OF THIS AGREEMENT IS STRICTLY PROHIBITED.
Code 42 makes no representations that the Code 42 Products and Services are appropriate for use in other locations outside of the United States. If you use the Code 42 Products and Services in or from locations outside the United States you are responsible for compliance with all applicable laws and regulations.
Code 42 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 Code 42 in its sole discretion and your acceptance of and/or continued use of any Code 42 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.
1. DESCRIPTION OF CODE 42 PRODUCTS AND SERVICES; DEFINITIONS.
Throughout this Agreement, the following descriptions and definitions shall apply. More detailed information regarding Code 42 Products and Services can be found at http://www.crashplan.com.
PRODUCTS AND SERVICES
a. “CrashPlan” is the free ad-supported version of the CrashPlan Software that allows you to backup your User Data once a day to multiple destinations utilizing your Private Cloud. CrashPlan does not allow for near real-time backups or the ability to backup your User Data to the Public Cloud.
b. “CrashPlan+” is the CrashPlan Software that allows you to backup your User Data automatically in near real time to your Private Cloud or to Code 42’s servers using up to 10GB of the Public Cloud. Your subscription to CrashPlan+ is limited to one (1) Device using up to 10GB of the Public Cloud. If you exceed the storage limitations, your backup to the Public Cloud will stop and you will need to utilize the Private Cloud. You acknowledge and assume all risk for exceeding the limited storage capabilities associated with a CrashPlan+ subscription.
c. “CrashPlan+ Unlimited” has the same features as CrashPlan+ with no current limitation on the amount of User Data stored on the Public Cloud (subject to future data storage limits described below). While there is no current limitation for CrashPlan Unlimited subscribers on the amount of User Data backed up to the Public Cloud, Code 42 reserves the right in the future, in its sole discretion, to set commercially reasonable data storage limits (i.e. 10 TB) on all CrashPlan+ Unlimited accounts.
d. “CrashPlan+ Family” has the same features as CrashPlan+ Unlimited 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 Unlimited subscribers on the amount of User Data backed up to the Public Cloud, Code 42 reserves the right in the future, in its sole discretion, to set commercially reasonable data storage limits (i.e. 20 TB) on all CrashPlan+ Family accounts.
e. “Public Cloud” is the secure cloud-based online backup storage services provided by Code 42 for NON-COMMERCIAL PERSONAL USE ONLY. When utilizing the Public Cloud, your User Data flows to and is stored on Code 42’s servers.
f. “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.
g. “CrashPlan Software” refers to each of, and collectively to, CrashPlan, CrashPlan+, CrashPlan+ Unlimited, and CrashPlan+ Family.
h. “Device” means your computer, tablet, smartphone, or any other electronic device.
i. “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 Code 42 Products and Services and made available by Code 42 with the Code 42 Products and Services in any manner.
j. “Modifications” refers to additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to CrashPlan Software or to remove or terminate the functionality of any CrashPlan Software in accordance with the termination provisions of this Agreement.
k. “User Data” means all content and materials submitted by you for which you have a legal right to copy, share, store, publicize or otherwise use.
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 Code 42 Products and Services.
a. CODE 42 PRODUCTS LIMITED EVALUATION LICENSE. Subject to the terms of this Agreement, you are hereby licensed by Code 42 to use for evaluation purposes only (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, 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 of CrashPlan, after the 30-day evaluation period, you must acquire from Code 42, 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 Code 42 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 evaluation version of CrashPlan Software may continue to operate as the free ad-supported CrashPlan.
b. NON-EVALUATION GRANT OF LICENSE. Conditioned upon compliance with the terms and conditions of this Agreement, Code 42 grants to you a nonexclusive and nontransferable license to use those Code 42 Products and Services that you have validly licensed and subscribed to use, along with their related Documentation. For CrashPlan, Crash Plan+ and CrashPlan+ Unlimited, 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 the sole discretion of Code 42. For CrashPlan+ Family you may use the CrashPlan Software on up to ten (10) Devices.
c. TITLE AND LIMITATIONS. This is a license and subscription to use the Code 42 Products and Services, not a transfer of title, to the CrashPlan Software and Documentation or any Code 42 Products and Services. Code 42 retains ownership of all copies of the CrashPlan Software and Documentation and any Code 42 Products and Services. You are granted no implied licenses to any other intellectual property rights other than as specifically granted herein. You acknowledge that the CrashPlan Software, Documentation and the Code 42 Products and Services contain trade secrets of Code 42, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. 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 Code 42 Products and Services or to create derivative works based upon the CrashPlan Software or any Code 42 Products and Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the CrashPlan Software or any Code 42 Products and Services to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the CrashPlan Software or any Code 42 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 Code 42; (v) disclose, provide, or otherwise make available trade secrets contained within the CrashPlan Software, Documentation and any Code 42 Products and Services in any form, to any third party without the prior written consent of Code 42; or (vi) use the CrashPlan Software or Code 42 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: (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 CrashPlan. As consideration for your license and subscription under this Agreement, you agree that (i) Code 42 and its business partners have a right to provide promotional offers, advertising and other information to you in connection with your use of CrashPlan, and that (ii) Code 42 has a right to allow CrashPlan Software and the Code 42 Products and Services to utilize the processor, bandwidth and storage hardware on your Device in association with the Code 42 Products and Services. You may opt out of receiving advertising from Code 42 and its business partners at any time by upgrading to a fee based subscription version of the Code 42 Products and Services or by discontinuing your use of the Code 42 Products and Services.
3. ACCESS TO CODE 42 PRODUCTS AND SERVICES.
In order to use Code 42 Products and Services, you must provide all Devices, equipment and software necessary to use Code 42 Products and Services that are not a part of the Code 42 Products and Services, including, but not limited to, a Device that is in working order running an operating system compatible with the Code 42 Products and Services and that is suitable for use in connection with the Code 42 Products and Services. You are responsible for ensuring that your Device, equipment and/or software do not disturb or interfere with Code 42's operations or the operations of other users of Code 42 Products and Services. If any Modification to Code 42 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 Code 42 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 Code 42 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 Code 42 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 constitutes an acceptance of such new price.
b. PAYMENT TERMS. Code 42 will offer you the opportunity to subscribe to the monthly, annual, or multi-year subscription fee, as applicable. After the free 30 day evaluation period, if you do not sign up, for a fee-based version of the Code 42 Products and Services, Code 42 will remove all User Data from the Public Cloud, however you will still be permitted to use the free ad-supported version of CrashPlan and backup User Data to your Private Cloud, subject to the terms of this Agreement, for as long as this service is made available by Code 42 in Code 42’s discretion. BY ACCEPTING THIS AGREEMENT AND USING CODE 42 PRODUCTS AND SERVICES, YOU EXPRESSLY AUTHORIZE CODE 42 TO BILL AND COLLECT PAYMENT FROM YOU BY ANY PAYMENT METHOD YOU REGISTER WITH CODE 42 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 Code 42 Products and Services, such fee will be charged by the company designated by Code 42 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). All prices stated on the Code 42 website are inclusive of any applicable sales taxes and fees and are subject to change at anytime. Code 42 accepts a variety of different payment methods, so please check the Code 42 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 Code 42. Failure to maintain proper and up-to-date payment and billing information will result in the termination of your subscription to the Code 42 Products and Services in accordance with Section 11 (Termination).
Your subscription to the Code 42 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 your prior subscription term. At the time of renewal the payment method you have designated to be charged for the subscription of the Code 42 Products and Services will automatically be charged our then current fees for the applicable subscription.
Code 42 is not obligated to refund any payments already paid, and any cancellation by you will take place at the end of your applicable subscription term, unless a sooner date is requested.
5. DATA STORAGE AND SECURITY.
a. DATA STORAGE. You decide where your User Data is stored and backed up. 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. Code 42 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. 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 Code 42 Products and Services; and/or (z) supply other hardware or equipment (i.e. external harddrive).
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 your User Data due to performance, compatibility or reliability issues associated with your Private Cloud.
(ii) Public Cloud. User Data stored to the Public Cloud is stored on Code 42’s servers and User Data is encrypted prior to being transmitted to Code 42. 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.
b. DATA SECURITY. CrashPlan Software provides three (3) levels of data security as described below:
|Data Security Level|
|Security Mode||Email Protected (Default)||Password Protected||Custom Key Protection|
|Level of Data Protection||Low||High||Extremely High|
|Additional Details||Data security key||Data security key & user provided data password||User provided custom data security key|
|Details||Code 42 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 Code 42. UNDER THIS DATA SECURITY LEVEL, SECURITY IS ONLY AS STRONG AS YOUR LOGIN CREDENTIALS AND/OR ACCESS TO YOUR EMAIL ACCOUNT.||Code 42 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.||Code 42 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. Code 42 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. If you believe there has been any unauthorized access to your account, you must notify Code 42 immediately at http://www.crashplan.com/helpdesk.
d. DELETED FILES. By default, all deleted files are maintained by Code 42, at Code 42’s discretion space permitting for at least thirty (30) days. In your account settings you can customize the period of time Code 42 would maintain a deleted file.
e. VERSIONING. By default, the Public Cloud will maintain up to 1,000 versions of your backup data over a four (4) year period. Code 42 reserves the right to reduce both the number of versions and period of time in its sole discretion. You may customize versioning in your account settings. Code 42 encourages you to configure your own versioning standard.
6. PRIVACY AND CUSTOMER INFORMATION.
a. METHOD OF PAYMENT INFORMATION. If you subscribed to the Code 42 Products and Services, we may collect and store your method of payment for the Code 42 Products and Services you have purchased.
b. ACCOUNT CREDENTIALS. Your e-mail address in combination with your password, allows Code 42 to verify your identity. CODE 42 EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY LOST, STOLEN, OR DELETED USER DATA, INCLUDING ANY 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 updates, such as, but not limited to, bug fixes and security updates, for the Code 42 Products and Services. Such updates may install automatically. Code 42 Products and Services may also contact Code 42 to verify the status of any subscription and right to use the Code 42 Products and Services. Devices with installed CrashPlan Software may also be tracked by Code 42 (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. CODE 42 PRODUCTS' LICENSE KEY. Code 42 Products may require activation via a license key. Code 42 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 Code 42 Products and Services to transmit the license key to Code 42 via the Internet for activation of the Code 42 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 to. Please see Section 5 for more information on Data Security.
f. PUBLIC CLOUD. By default, unique User Data submitted to the Public Cloud is encrypted before transmission and is not decrypted by Code 42 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. Where appropriate, duplicate User Data in the Public Cloud may be de-crypted and re-encrypted using a separate data security key to reduce overall storage consumption in the Public Cloud. Please see Section 5 for more information on Data Security.
For continuity of performance, you agree that Code 42 may, at any time in the sole discretion of Code 42, access the CrashPlan Software on your computer, and/or cause the CrashPlan Software to contact Code 42, in order to provide Modifications. All Modifications will be related to the Code 42 Products and Services and will not include additional software from third parties, except for Open Source Content (see Section 10 for more information on Open Source Content). While Code 42 extensively tests all Modifications for compatibility, Code 42 does not warrant that Modifications or the Code 42 Products will be compatible with your Device. In the event your Device is not compatible with any Modification or the Code 42 Products and Services, your sole remedy is to terminate this Agreement and your subscription to the Code 42 Products and Services in accordance with Section 11.
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. Code 42 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. Code 42 does not warrant that all of your computer or 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 CrashPlan Software or your use of the Code 42 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 Code 42 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 Code 42 Products and Services in the same form and manner that such copyright and other proprietary notices are included on the CrashPlan Software and the Code 42 Products and Services. Except as expressly authorized in this Agreement, you shall not make any copies or duplicates of any CrashPlan Software or the Code 42 Products and Services without the prior written permission of Code 42.
10. OPEN SOURCE CONTENT.
You acknowledge that some of the CrashPlan Software contains open source or publicly available content under separate license and copyright requirements which are located either in this license, the CrashPlan Software README file, or the Documentation. You agree to comply with such separate license and copyright requirements. Certain portions of the CrashPlan Software are licensed under, and your use of such portions are subject to, the GNU General Public License version 2. A copy of the license is available at www.fsf.org or by writing to email@example.com or the Free Software Foundation, 59 Temple Place, Suite 330, Boston, MA 02111-1307. Source code governed by the GNU General Public License version 2 is available upon written request to Code 42 at 1 Main Street S.E. #400, Minneapolis, Minnesota 55414, without charge except for the cost of media, shipping, and handling. The GNU General Public License version 2 software is distributed WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
This Agreement shall be effective as of your acceptance of this Agreement and/or your use of the Code 42 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 Code 42 Products and Services at will, at any time. Code 42 specifically reserves the right to terminate this Agreement and your use of Code 42 products immediately, without notice from Code 42, if you fail to comply with any provision of this Agreement, your use any Code 42 Product and Services in a way not intended by Code 42, or you abuse your use of Code 42 Products and Services. Code 42 is further entitled to obtain injunctive relief if your use of the Code 42 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, CODE 42 MAY TERMINATE YOUR ABILITY TO CONTINUE TO USE CODE 42 PRODUCTS AND SERVICES. THE TERMINATION OF YOUR ABILITY TO CONTINUE TO USE CODE 42 PRODUCTS AND SERVICES WILL CAUSE THOSE CODE 42 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 CODE 42 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) 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.
12. ALLOCATION OF RISK.
You acknowledge and agree that Code 42 has set its prices and entered into this Agreement and your subscription to the Code 42 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.
Code 42 warrants that, for a period of ninety (90) days from the date of the first purchase of your subscription to the Code 42 Products and Services that such Code 42 Products and Services, in the form delivered by Code 42, will substantially conform to and perform substantially in accordance with Code 42's published Documentation, to the extent such exists, with respect thereto when installed and operated in accordance with Code 42 specifications, and Code 42 will endeavor to correct any failure of the Code 42 Products and Services to so conform or perform of which Code 42 receives written notice from you within said ninety (90) day period. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE 42 PRODUCTS AND SERVICES FURNISHED BY CODE 42 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 CODE 42. CODE 42 DOES NOT WARRANT THAT THE CODE 42 PRODUCTS AND SERVICES OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE CODE 42 PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CODE 42 PRODUCTS AND SERVICES IS WITH YOU.
14. LIMITATION OF REMEDIES.
YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THAT (A) CODE 42 WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF CODE 42 PRODUCTS AND SERVICES TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH CODE 42'S DOCUMENTATION OR, TO THE EXTENT SUCH SPECIFICATIONS EXIST, DURING THE WARRANTY PERIOD SET FORTH IN SECTION 13 OF THIS AGREEMENT OR (B) IN THE EVENT THAT CODE 42 SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY SUCH FAILURE OR NON-CONFORMITY OF THE CODE 42 PRODUCTS AND SERVICES YOU MAY TERMINATE THIS AGREEMENT AS TO THE AFFECTED CODE 42 PRODUCTS.
15. LIMITATION OF CODE 42 LIABILITY.
IN NO EVENT WILL CODE 42 BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE 42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE 42 UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF CODE 42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF CODE 42 UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE 42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE 42 UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO CODE 42 FOR YOUR SUBSCRIPTION OF CODE 42 PRODUCTS AND SERVICES UNDER THIS AGREEMENT.
16. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.
Subject to the limitations of Section 15, Code 42 will defend you and hold you harmless against liability upon any claim by any third party that the Code 42 Products and Services as furnished by Code 42 infringe or violate any copyright, trademark or trade secret rights of such third party or any patent rights of such third party under a United States patent issued as of the effective date of this Agreement, provided that: a) you notify Code 42 promptly in writing of any notice of any such claim; b) you cooperate with Code 42 in all reasonable respects in connection with the investigation and defense of any such claim; c) Code 42 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 Code 42 Products and Services become, or in Code 42's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit Code 42, at Code 42's option and expense, either to: (i) procure for you the right to continue using the affected Code 42 Products and Services; (ii) replace or modify the same so that it becomes non-infringing; or (iii) terminate this Agreement with respect to such Code 42 Products and Services and refund to you the amount of the subscription fees paid to Code 42 for charges for the thirty (30) day billing cycle during which you notified Code 42 in writing of any such claims and thereafter. Notwithstanding anything herein to the contrary, however, Code 42 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 Code 42 Products and Services in a manner other than that for which it was furnished by Code 42, upon any Code 42 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 Code 42.
17. INDEMNITY BY YOU.
You will, to the fullest extent permitted by law, indemnify Code 42 and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “Code 42 Indemnified Parties”) against and hold the Code 42 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 Code 42 Indemnified Parties by third parties.
18. U.S. GOVERNMENTAL END USER PURCHASES.
The Code 42 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 Code 42 Products are installed and any User Data used in conjunction the Code 42 Products and Services; (b) you shall use the Code 42 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; and © you shall use the Code 42 Products and Services for your personal use only. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Code 42 Products and Services except to uninstall the same as provided herein.
20. GENERAL PROVISIONS.
a. ENFORCEMENT/CHOICE OF LAW/CHOICE OF FORUM. 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 so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect. The laws of the State of Minnesota, excluding its conflicts of law rules, govern this Agreement and your use of the Code 42 Products and Services. Your use of the Code 42 Products and Services may also be subject to other local, state, national, or international laws. 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. Any action between the parties will be venued in a state or federal court situated within the state of Minnesota, and you irrevocably submit yourself to the personal jurisdiction of such courts for such purpose. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
c. CORRECTION OF ERRORS AND INACCURACIES. This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. Code 42 reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice. Code 42 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 Code 42 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 Code 42 Products and Services except as authorized by United States law and the laws of the jurisdiction in which the Code 42 Products and Services were obtained. In particular, but without limitation, the Code 42 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 Code 42 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.
21. 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: January 15, 2013. Copyright 2006-2013, Code 42 Software, Inc. All Rights Reserved.