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EULA For Code42 Enterprise Offerings

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END-USER LICENSE AGREEMENT  (“EULA”)
FOR CODE42
® ENTERPRISE OFFERINGS

This EULA is a legal agreement between the end-user customer (in any capacity referred to herein as “You” or “Your” or “End-User”), and Code42.  This EULA governs Your use of the Code42 Software, Code42’s subscription-based services, including Support, the Public Cloud, and Monitoring (“Code42 Subscription Services”), Professional Services, Documentation, and any hardware sold hereunder to End-User (hereinafter individually and collectively the "Code42 Products and Services").   

BY OPERATING, DOWNLOADING, INSTALLING, REGISTERING OR OTHERWISE USING THE CODE42 PRODUCTS AND SERVICES, OR OTHERWISE CLICKING AN "I ACCEPT” OR “CONTINUE" BUTTON ASSOCIATED WITH THIS EULA, YOU EXPRESSLY AND EXPLICITLY ACKNOWLEDGE AND AGREE THAT THIS IS A BINDING EULA AND YOU HEREBY AGREE TO THE TERMS OF THIS EULA.  IF YOU ARE AN AUTHORIZED AGENT ENTERING INTO THIS EULA ON BEHALF OF THE END-USER, YOU HEREBY REPRESENT AND WARRANT TO CODE42 THAT YOU ARE (A) AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF THE END-USER AND BIND END-USER TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA; AND (B) YOU ARE OVER THE AGE OF 18 YEARS OLD. IF YOU ARE AN INFORMATION TECHNOLOGY ADMINISTRATOR FOR THE END-USER, YOUR ACCEPTANCE OF THIS EULA IS ON BEHALF OF END-USER. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS EULA OR ARE NOT AN AUTHORIZED AGENT FOR END-USER, DO NOT OPERATE, DOWNLOAD, INSTALL, REGISTER OR OTHERWISE USE THE CODE42 PRODUCTS AND SERVICES.

Code42 reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this EULA and to impose new or additional rules, policies, terms, or conditions on Your use of the Code42 Products and Services. Code42 will communicate changes to this EULA by posting the new version of the EULA on its website at www.code42.com (or support.code42.com) or as otherwise determined by Code42 in its sole discretion, at which time such updated EULA will be immediately effective. Your continued use of any Code42 Products and Services after such notification of changes to this EULA will constitute the End-User’s acceptance of any and all such changes.  If End-User wants to receive regular communications (via email or other electronic method) regarding modifications or additions to the Documentation, You must subscribe at http://www.code42.com/documentation-notifications.

  1. DEFINITIONS.
    1. 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.
    2. Code42” means (i) Code 42 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 subsections (ii) or (iii); or (ii) with respect to all Code42 Products and Services that are shipped to, deployed or rendered within the European Union or South America, Code 42 Software UK LTD, a company incorporated under the laws of the United Kingdom with its principal place of business at Unit R3B Rapide, De Havilland Court, Penn Street, Amersham HP7 0PX, UK; or (iii) with respect to all Code42 Products and Services that are shipped to, deployed or rendered within Australia, Code 42 Australia Pty LTD, a company incorporated under the laws of Australia.
    3. "Code42 Partner" means a third party reseller or distributor authorized by Code42 to sell Code42 Products and Services.
    4. "Code42 Software" means Code42-branded enterprise software licensed on a subscription basis as part of the Code42 Subscription Services.
    5. Code42 Users” means those employees or contractors of End-User who are using the Code42 Software on one or more Devices (not to exceed 4 Devices per user) to backup User Data (either active or inactive) or utilizing other features of the Code42 Products and Services.
    6. "Device" means any computer, tablet, smartphone, or other electronic device running the Code42 Software.
    7. "Documentation" means written, published information accessible via http://support.code42.com, as updated from time to time.
    8. Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
    9. Master Server” means the server on which the Code42 Software is installed for user authentication and authorization, storage of encryption keys, and centralized policy management, and, at End-User’s election, it must be located in either the Public Cloud, a private cloud (on End-User’s own hardware), or on hardware purchased from Code42 or a Code42 Partner that is located within End-User’s data center.
    10. "Modifications" means additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to Code42 Software or to remove or terminate the functionality of any Code42 Software in accordance with the termination provisions of this EULA.
    11. Monitoring” means the remote web-based monitoring of the Master Server by Code42, only if such hardware was purchased from Code42.
    12. Order” means a written purchase order or similar ordering document, submitted to Code42 by End-User (or on Your behalf by a Code42 Partner) and approved by Code42, pursuant to which End-User agrees to purchase the Code42 Products and Services. The term “Order” includes End-User’s order of Code42 Products and Services via Code42’s website(s).
    13. Professional Services” means, collectively, those security consulting services provided by Code42 under a Statement of Work or set forth on an Order or Quote, which may consist of product-related services such as deployment, configuration, and installation; setting up a cloud destination; proactive security consulting; or incident response or other remedial services.
    14. Public Cloud” means the cloud-based off premises backup storage services provided by Code42 on Code42’s servers in data centers located in the United States, Ireland, Netherlands, Australia, and other locations determined by Code42.
    15. “Quote” means a written purchase document generated by Code42 and accepted by End-User (or on Your behalf by a Code42 Partner) pursuant to which Code42 agrees to provide and End-User agrees to purchase specific Code42 Products and Services. 
    16. Subscription Term” means the period of time identified on each Quote or Order, for which Code42 has committed to provide, and End-User has committed to pay for, the Code42 Subscription Services (generally, twelve (12) months in duration).
    17. Support” means the support and maintenance services performed by Code42 related to the Code42 Software, Public Cloud, and Master Server, descriptions of which are accessible via http://www.code42.com/r/support/eula-support.
    18. Third Party Product” means any non-Code42-branded products and services (including hardware) and non-Code42-licensed software products.
    19. "User Data" means all content and materials backed up, stored, indexed, or otherwise transmitted by End-User in an encrypted form using the Code42 Software.

 

  1. GRANT OF LICENSE AND ACCESS TO CODE42 SUBSCRIPTION SERVICES.
    1. EVALUATION LICENSE DURING EVALUATION PERIOD. This paragraph only applies if End-User receives the Code42 Software for evaluation purposes.  Subject to the terms and conditions of this EULA, Code42 (i) grants to End-User a license to download and evaluate the Code42 Software, and (ii) allows End-User’s use of the Public Cloud (the “Evaluation Offerings”). End-User may use the Evaluation Offerings solely for its internal evaluation purposes for a period of up to thirty (30) days from the activation of the Evaluation Offerings (the “Evaluation Period”).  End-User and Code42 may, upon mutual written agreement (including via email), extend the Evaluation Period (with such extension included within the definition of Evaluation Period). Continued use of the Code42 Software after the Evaluation Period requires payment of the applicable Fees.  The ability to back up or retrieve User Data from the Public Cloud will automatically cease to function at the end of the Evaluation Period.
    2. PRODUCTION LICENSE DURING SUBSCRIPTION TERM. Subject to the terms and conditions of this EULA, Code42 grants to End-User a nonexclusive and nontransferable license to download and use the Code42 Software during the Subscription Term solely for internal business purposes only.
    3. PERPETUALLY LICENSED CODE42 SOFTWARE.  If End-User previously purchased software from Code42 that was licensed under a perpetual license model, this EULA will only apply to the purchase of Code42 Subscription Services. The terms and conditions specific to the license of software on a perpetual basis shall be specified either on the Quote or Order or some other written agreement between End-User and Code42.

 

  1. ORDERING.
    1. PURCHASES OF CODE42 PRODUCTS AND SERVICES. End-User may purchase the Code42 Products and Services either by submitting an Order or executing a Quote, with each Order requiring the minimum purchase of twenty-five (25) Code42 Users or such other minimum purchase volume established by Code42 from time to time.  Purchase of the Code42 Subscription Services includes access to the Code42 Software as well as Support during the Subscription Term. Code42 may update its Support responsibilities from time to time. End-User acknowledges that Code42 is not responsible for technical issues that cannot be identified as being primarily caused by Code42 Products and Services.  Support related to hardware purchased from Code42 for use as a Master Server, including Monitoring services, are sold separately. 
    2. PAYMENT. End-User agrees to purchase the Code42 Products and Services for the prices set forth in each Order and/or Quote, as applicable (“Fees”).  If End-User purchases through a Code42 Partner, all fees and other procurement and delivery terms shall be agreed between End-User and the applicable Code42 Partner.  If End-User purchases directly from Code42, End-User will make full payment in the currency specified in Code42’s Quote, without set-off and in immediately available funds, within thirty (30) days of the date of the related invoice.  All Fees are non-cancelable and non-refundable.  All Fees described on an Order or Quote will be fully invoiced in advance, unless otherwise agreed by Code42.  Unless otherwise specified in a Statement of Work, all Fees related to Professional Services will be invoiced fully in advance.  End-User shall reimburse Code42 for any and all expenses incurred by Code42 so long as such expenses are directly attributable to the Professional Services performed for or provided to End-User.  If any payment is more than fifteen (15) days late, Code42 may, without limiting any remedies available to Code42: (i) terminate the applicable Order or Quote; or (ii) suspend performance of or access to the applicable Code42 Products and Services including any portion of the Code42 Subscription Service, until payment is made current.  End-User will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law.  All Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the Code42 Products and Services shall be invoiced to and paid by End-User.  For purposes of calculating sales and similar taxes, Code42 will use the address set forth on the Order or Quote as the jurisdiction to which Code42 Products and Services are delivered unless End-User has otherwise notified Code42 in writing. End-User will provide tax exemption certificates to Code42 (directed to accounting42@code42.com). Code42 reserves the right to increase Fees at any time, although increases in Fees for Code42 Subscriptions Services will not go into effect until the next renewal Subscription Term.
    3. PAYMENT BY CREDIT CARD.  If End-User pays by credit card, End-User agrees that Code42 may charge the credit card provided by End-User until End-User specifies otherwise, and End-User agrees to promptly contact Code42 if its credit card information needs to be updated.  End-User also acknowledges that Fees for Credit Card purchases are indicated on the Code42 website.
    4. RENEWALS. End-User’s subscription to the Code42 Products and Services it purchases will not automatically renew at the end of each Subscription Term unless End-User and Code42 have otherwise agreed in writing (including via a Quote). Unless otherwise requested by End-User, any renewals will be the same duration as the prior Subscription Term.
    5. PURCHASE OF ADDITIONAL CODE42 USERS. If End-User chooses to increase the number of Code42 Users during a Subscription Term (a “Subscription Upgrade”), any incremental Fees associated with such Subscription Upgrade will be prorated over the remaining period of the then current Subscription Term, and due and payable upon issuance of the product license key.  In any future Subscription Term, the Fees will reflect any such Subscription Upgrades.
    6. SHIPPING, TITLE AND RISK OF LOSS. Unless otherwise specified in the Quote or Order, all deliveries of hardware purchased hereunder are EXW shipper’s dock (INCOTERMS 2010), and title to said hardware shall pass to End-User upon delivery of the hardware to the carrier.  Unless expressly stated otherwise in this EULA, Code42 retains all title in, and interest to, the Code42 Software. Code42 may ship parts of an Order separately. End-User must notify Code42 within twenty-one (21) days from the date of the invoice or acknowledgement if End-User believes any part of an Order is missing, wrong, or damaged.
    7. NO REFUNDS.  Code42 is not obligated to refund any Fees or other payments already paid, and any cancellation by End-User will take place at the end of the applicable Subscription Term, unless Code42 otherwise agrees in writing.

 

  1. INTELLECTUAL PROPERTY.
    1. OWNERSHIP.  This EULA contains a license to use the Code42 Products and Services during a Subscription Term, not a transfer of title to the Code42 Products and Services (with the exception of any purchase of hardware from Code42).  All Intellectual Property Rights in the Code42 Products and Services belong exclusively to Code42 and its licensors. End-User is granted no implied licenses to any other Intellectual Property Rights other than as specifically granted herein. End-User shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Code42 Products and Services as delivered to End-User. To the extent End-User provides any suggestions or comments related to the Code42 Products and Services to Code42 or its authorized third party agent(s), Code42 shall have the right to retain, use, and disclose any such suggestions or comments in current or future products or services, without the approval of or further compensation to End-User.
    2. RESTRICTIONSExcept as otherwise expressly provided under this EULA, End-User shall have no right, and End-User specifically agrees not to: (i) transfer, assign or sublicense any license or subscription rights to another person or entity, and End-User acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, the Code42 Products and Services or to create derivative works based upon the Code42 Products and Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Code42 Products and Services to human-readable form; (iv) use or permit the Code42 Products and Services to be used or otherwise rebranded for commercial use in the operation of End-User’s business or to perform services for third parties, whether as a managed service provider, outsourced business process providers, on a service bureau or time sharing basis or otherwise; (v) disclose, provide, or otherwise make available trade secrets contained within the Code42 Products and Services in any form, to any third party without the prior written consent of Code42; or (vi) use the Code42 Products and Services to develop any software application or similar products and services.
    3. CHANGES TO OR DISCONTINUATION OF CODE42 SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES.Code42 reserves the right to revise or discontinue any goods or services at any time without notice to End-User. Changes to or discontinuation of the Code42 Subscription Services or Professional Services may occur after End-User places an Order but before Code42 ships or fulfills the Order, before Code42 performs any services, or before any renewal of the Code42 Subscription Services.

  

  1. DATA SECURITY.
    1. DATA STORAGE. End-User must decide where its User Data is stored (either with Code42 in the Public Cloud or End-User’s chosen private cloud location not managed by Code42).  End-User understands and acknowledges that only the files End-User selects for back up will be stored. Related to the Public Cloud, except as otherwise noted in this EULA, User Data is encrypted while transmitted to and while at rest.  Code42 may change the destination of User Data in the Public Cloud; however, if End-User’s principal location is within the European Economic Area or the United States, Code42 will use commercially reasonable efforts to notify End-User (via email or other electronic communication) approximately thirty (30) days before Code42 stores the User Data in data centers located outside the European Economic Area or the United States, respectively.  If End-User is entitled to this notice and does not wish to have User Data hosted in data centers located in such other country or territory, End-User may terminate its Code42 Subscription Services with immediate effect upon written notice to Code42 (directed to legal@code42.com) within thirty (30) days of Code42’s notification.  The Public Cloud is designed to work with Devices that are in-use and frequently connected to the Internet. End-User is solely responsible for the loss of any User Data not stored in the Public Cloud.  Related to End-User’s private cloud, certain User Data must be stored on End-User’s private cloud destination(s) if its organization utilizes file indexing or any other features of the Code42 Software that explicitly require the use of private destination(s).  IF END-USER ELECTS TO USE CLOUD CONNECTORS IN CONNECTION WITH THE CODE42 PRODUCTS AND SERVICES, THEN CODE42 SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY UNLAWFUL OR UNRIGHTFUL USER DATA UPLOADED TO THE PUBLIC CLOUD OR STORED IN YOUR PRIVATE CLOUD. 
    2. ENCRYPTION.  The Code42 Software uses strong encryption algorithms to encrypt User Data prior to any transmission from the Device where the User Data resides. Unless decrypted by End-User or a third party with access to End-User’s passwords or encryption keys, User Data remains encrypted at Code42’s Public Cloud secure data centers or within End-User’s private cloud, as elected by End-User. End-User shall be solely responsible for securing the encryption keys it has been provided by Code42 related to the Code42 Software.  More information related to archive encryption options can be found at http://www.code42.com/r/support/eula-archive_security.  Only End-User can decrypt and view its unencrypted User Data, unless End-User (i) provides a third party access to the User IDs (as defined below), passwords, or encryption keys; (ii) allows Code42 Users to utilize the Code42 Software’s “web restore” feature, which would cause unencrypted User Data to exist for an undetermined period of time within the Public Cloud; (iii) provides Code42 with access to End-User’s encryption keys as part of Support or Professional Services; or (iv) elects to escrow End-User’s encryption keys in the Public Cloud. Code42 is not responsible for the security or confidentiality of any encryption key(s) provided by End-User to Code42, and Code42 shall not be liable for any loss, liability, damages, or claims arising from the disclosure of any encryption key(s) to Code42 or its representatives or any other third parties.
    3. USER IDS. As a condition to using the Code42 Subscription Services, each Code42 User of the Code42 Subscription Services will be required to register and select a user name ("User ID") and password.  End-User will provide accurate and complete registration information and will update its registration information, as necessary, to keep current.  End-User should not (i) select or use as a User ID the name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than such user without appropriate authorization. End-User is solely responsible for the security of any User ID, password or encryption key in the care, custody or control of End-User or its Code42 Users; End-User shall ensure that its Code42 Users do not share User IDs, passwords or encryption keys with others.
    4. SECURITY PATCHES. The Code42 Software may automatically push and install updates, such as, but not limited to, bug fixes and security updates, for the Code42 Subscription Services. Such updates may install automatically as part of the Public Cloud; in any event, if a bug fix or security update is deemed critical by Code42, then Code42 may automatically install such fix or update (including, a restart of End-User’s Master Server, if End-User has elected to not store encryption keys in the Public Cloud).
    5. SURVEILLANCE. The Code42 Software may contact Code42 to verify the status of any Code42 Subscription Services and to confirm that End-User is 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.
    6. SECURITY BREACH OR CYBER-ATTACK.  Code42 may, without liability, suspend or terminate any or all Code42 Subscription 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. 

 

  1. USER DATA.

CODE42 ACKNOWLEDGES THAT END-USER HAS 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.  END-USER SHOULD ONLY USE THE CODE42 PRODUCTS AND SERVICES WITH USER DATA TO WHICH IT HAS FULL RIGHT, TITLE OR LICENSE. Code42 utilizes industry standard practices and policies to maintain administrative, physical and technical safeguards for the protection and security of User Data (see Section 5 above). End-User is hereby notified and acknowledges that Code42 Subscription Services may include interaction and communication with facilities hosted outside of the country where End-User purchases or utilizes the Code42 Products and Services. End-User represents and warrants that its use of the Code42 Subscription Services and related backup to and storage of User Data in the Public Cloud complies with all Applicable Laws, including those relate to data privacy, data security, international communication and the exportation of technical, personal or sensitive data. Submission of unencrypted User Data to Code42 shall be at End-User’s sole discretion and at its own risk, and Code42 assumes no responsibility or liability for receipt of such User Data. End-User further acknowledges that Code42 may anonymize such User Data to use for statistical purposes and share samples of such anonymized User Data with other third party security-related researchers, vendors and other customers. CODE42 MAY PROVIDE ASSISTANCE TO END-USER IN CREATING A TECHNICAL FRAMEWORK THAT IS USED BY YOU TO MANAGE CERTAIN REGULATORY OBLIGATIONS; PROVIDED, HOWEVER, IN NO EVENT WILL CODE42 BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS END-USER MAY HAVE RELATED TO ITS USER DATA.  RELATED TO THE HANDLING OF ITS PROTECTED USER DATA, END-USER SHALL HAVE AND MAINTAIN APPROPRIATE POLICIES AND PROCEDURES FOR CYBERSECURITY AND TO ENSURE COMPLIANCE WITH ITS REGULATORY OR LEGAL OBLIGATIONS.

 

  1. MODIFICATIONS.

For continuity of performance, End-User agrees that Code42 may, at any time in its sole discretion, access the Code42 Software on End-User’s Devices, and/or cause the Code42 Software to contact Code42, in order to provide Modifications. While Code42 extensively tests all Modifications for compatibility, Code42 does not warrant that Modifications or the Code42 Products and Services will be compatible with all of End-User’s Devices.  In the event a Device is not compatible with any Modification or the Code42 Products and Services, End-User’s sole remedy is to terminate this EULA.

 

  1. UNINSTALLING CODE42 SOFTWARE.

UNINSTALLING THE CODE42 SOFTWARE WILL CEASE ALL FUNCTIONALITY OF THE CODE42 PRODUCTS AND SERVICES.  UNINSTALLING CODE42 SOFTWARE WILL RESULT IN END-USER NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED IN THE PUBLIC CLOUD USING THE CODE42 SOFTWARE AND LIMITED ACCESS TO ANY USER DATA STORED IN YOUR PRIVATE CLOUD. UNINSTALLING CODE42 SOFTWARE WILL PREVENT RETRIEVAL OF BACKED UP USER DATA FROM DEVICES.

 

  1. OPEN SOURCE CONTENT.

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 list of Open Source Software can be found at http://www.code42.com/legal/open-source/.

 

  1. TERM AND TERMINATION.
    1. TERM.  This EULA shall be effective upon End-User’s acceptance and continue in effect until terminated as set forth in this EULA.  
    2. TERMINATION. Either End-User or Code42 may, at its election and sole discretion, terminate this EULA or any Code42 Subscription Services at will, at any time; however, except as explicitly set forth herein, Code42 will not be liable for refunding any prepaid Fees for any unused portion of a Subscription Term. Code42 is entitled to obtain injunctive relief if End-User’s use of the Code42 Products and Services is in violation of any restrictions set forth in this EULA.
    3. EFFECTS OF TERMINATION.  THE TERMINATION OF THE CODE42 SUBSCRIPTION SERVICES WILL CAUSE THOSE CODE42 PRODUCTS AND SERVICES TO CEASE FUNCTIONING AND RESULT IN END-USER NOT BEING ABLE TO ACCESS ANY USER DATA. FOLLOWING TERMINATION OF THIS EULA (OR A SUBSCRIPTION TERM), CODE42 WILL DESTROY ALL USER DATA STORED IN THE PUBLIC CLOUD. Upon termination, End-User shall destroy all copies of the Code42 Software in its possession or control. The termination of this EULA for any reason shall not affect: (i) the obligations of End-User and Code42 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 (ii) any other obligation or liability which either End-User or Code42 has to the other under this EULA and which, by its nature, would reasonably be expected to survive termination.
    4. REQUESTING AN EXTENSION.  User Data may be available in the Public Cloud for up to thirty (30) days following termination of this EULA or a Subscription Term (the “Grace Period”). End-User understands that Code42 makes no warranties that User Data will be accessible during the entire Grace Period, if at all. To ensure any retrieval of User Data during the Grace Period, End-User must notify Code42 via email (directed to renewals@code42.com) requesting access to the User Data after termination or expiration, in which event Code42 will enable End-User’s access to the Code42 Subscription Service for a maximum of fifteen (15) days following the end of the Subscription Term (at no additional cost), subject to End-User’s compliance with this EULA. Subject to the foregoing, End-User acknowledges that Code42 is not responsible for the availability or accessibility of User Data following the end of the Subscription Term.

 

  1. ALLOCATION OF RISK.

End-User acknowledges and agrees that Code42 has set its prices and entered into this EULA and permitted End-User’s subscription to the Code42 Products and Services in reliance upon the disclaimers of warranty and the limitations of liability in this EULA, that the same reflect an allocation of risk between Code42 and End-User (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 Code42 and End-User. If End-User is subject to Applicable Laws that prohibit End-User from indemnifying Code42 as set forth herein or prohibit End-User from entering into the risk allocation arrangement set forth herein, then (a) the terms of such provisions of this EULA shall apply to End-User only to the fullest extent permitted by Applicable Law, it being understood that End-User and Code42 each wish to enforce the provisions of this EULA to the maximum extent permitted by law; and (b) End-User must, within thirty (30) days of the commencement of the Subscription Term, notify Code42 via email (directed to legal@code42.com) to specifically identify the Applicable Laws that apply to End-User and the resulting modifications to the risk allocation and indemnification provisions of this EULA as a result of the application of such Applicable Laws.

 

  1. LIMITED WARRANTIES.
    1. CODE42 SUBSCRIPTION SERVICES.  Code42 warrants to End-User that the Code42 Subscription Services will be provided in accordance with the Documentation.  If End-User believes the warranty stated in this section has been breached, End-User must notify Code42 in writing of the breach no later than thirty (30) days following the date the warranty was allegedly breached (directed to legal@code42.com), and Code42 will promptly correct the non-conformity, at Code42’s expense. This is End-User’s sole and exclusive remedy.
    2. PROFESSIONAL SERVICES. Code42 warrants to End-User that Professional Services will be performed in a professional manner in accordance with industry standards for like services.  If End-User believes the warranty stated in this section has been breached, End-User must notify Code42 in writing of the breach no later than thirty (30) days following the date the Professional Services were performed (directed to legal@code42.com), and Code42 will promptly correct or re-perform the Professional Services, at Code42’s expense. This is End-User’s sole and exclusive remedy.
    3. THIRD PARTY PRODUCTS. Third Party Products may carry a limited warranty from the third-party publisher, provider or original manufacturer of such Third Party Products. To the extent required or allowed, Code42 will pass through to End-User manufacturer warranties related to such Third Party Products, if any.  Notwithstanding the foregoing, End-User acknowledges that Code42 is not responsible for the fulfillment of any Third Party Product warranty or for problems attributable to use of Third Party Products. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY CODE42 ON AN “AS IS” BASIS.
    4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE42 PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CODE42, TO THE EXTENT PERMITTED BY APPLICABLE LAW.  CODE42 DOES NOT WARRANT THAT THE CODE42 PRODUCTS AND SERVICES WILL MEET END-USER’S REQUIREMENTS OR THAT THE CODE42 SUBSCRIPTION 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 END-USER.

 

  1. LIMITATION OF CODE42 LIABILITY.

IN NO EVENT WILL CODE42 BE LIABLE TO END-USER FOR ANY LOST PROFITS, LOST SAVINGS, LOST USER DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS EULA OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS EULA OR THE USE THEREOF, EVEN IF CODE42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF CODE42 UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS EULA OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS EULA WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID TO CODE42 FOR YOUR SUBSCRIPTION OF CODE42 PRODUCTS AND SERVICES UNDER THIS EULA DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES.

 

  1. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.
    1. INDEMNITY FOR CODE42 SOFTWARE.  Subject to the limitations of Section 13, and only if End-User has purchased and is lawfully using the Code42 Subscription Services, Code42 will defend End-User and hold End-User harmless against liability upon any claim by any third party (unaffiliated with End-User) that the Code42 Software as furnished by Code42 infringes or violates any U.S. patent, copyright, trade secret, proprietary, or other intellectual property right of a third party as of the effective date of this EULA, provided that: (i) End-User must notify Code42 promptly in writing of any notice of any such claim (directed to legal@code42.com); (ii) End-User must cooperate with Code42 in all reasonable respects in connection with the investigation and defense of any such claim; (iii) Code42 shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and (iv) should the Code42 Software 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, End-User will permit Code42, at Code42's option and expense, either to: (1) procure for End-User the right to continue using the affected Code42 Software; (2) replace or modify the same so that it becomes non-infringing; or (3) terminate this EULA with respect to such Code42 Software and provide to End-User a refund, on a pro-rata basis, of all applicable prepaid Fees received by Code42 for the Code42 Software related to the infringement allegation for the applicable Subscription Term. 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 Code42 Products and Services in a manner other than that for which it was furnished by Code42, upon any Code42 Products and Services which have been modified by or for End-User in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by Code42.
    2. INDEMNITY FOR THIRD PARTY PRODUCTS.  To the extent required or allowed, Code42 will pass through to End-User any indemnities related to such Third Party Products, if any.  Notwithstanding the foregoing, End-User acknowledges that Code42 is not responsible for the fulfillment of any Third Party Product indemnities or for problems attributable to use of Third Party Products.

 

  1. INDEMNITY BY END-USER.

End-User will, to the fullest extent permitted by Applicable 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 End-User which give rise to claims against Code42 Indemnified Parties by third parties (unaffiliated with Code42), provided any final settlement shall require Code42’s consent (which shall not be unreasonably withheld) if the final settlement or compromise does not provide for the unconditional and full release of the Code42 Indemnified Parties or if the final settlement or compromise requires the specific performance of Code42 Indemnified Parties.  In all events, Code42 shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at Code42’s own cost.

 

  1. U.S. GOVERNMENT PURCHASES.

The Code42 Products and Services are “Commercial Terms,” as that term has been defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms have been 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 (i) only as Commercial items; and (ii) with only those rights as are granted to all other end users pursuant to this EULA.  The terms and conditions of this EULA shall apply to the government’s use and disclosure of the Code42 Products and Services and shall supersede any conflicting contractual terms and conditions.  If this EULA or the license granted hereunder fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Code42 Products and Services, unused, to Code42.  Unpublished rights are reserved under the copyright laws of the United States.

 

  1. ANTICORRUPTION LAWS.  

End-User and Code42 each acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA") and the U.K. Bribery Act of 2010 (the “UKBA”) and agrees to comply with its terms as well as any provisions of local law related thereto.  End-User and Code42 each understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the offering.  End-User and Code42 each agrees to not violate or knowingly let anyone violate the FCPA or UKBA and that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or anti-bribery law.

 

  1. YOUR OBLIGATIONS.

End-User represents and warrants that (a) End-User shall use the Code42 Products and Services only for lawful purposes, and will comply with all Applicable Laws; (b) End-User shall use the Code42 Products and Services only for its internal business needs and for no other commercial or third party uses; and (c) End-User’s access to and collection, use, relocation, storage, disclosure and disposition of User Data shall comply with all Applicable laws, including without limitation, all privacy and data security laws.

 

  1. GENERAL PROVISIONS.
    1. SEVERABILITY.  Every provision of this EULA will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this EULA 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 EULA, and all other provisions will remain in full force and effect.
    2. GOVERNING LAW. If, pursuant to Section 1(b) of this EULA, Your relationship is with Code 42 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 Software UK LTD, then this EULA shall be deemed to have been made in, and shall be construed pursuant to the Applicable Laws of England and Wales, and any action will be commenced exclusively in the courts of England and Wales, and End-User irrevocably submits to the jurisdiction and venue of any such courts 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.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. If Your organization is subject to laws that prohibit End-User from agreeing to the foregoing governing law and/or venue provisions, then (i) the terms of such provisions of this EULA shall be deemed to be modified to reflect the governing law and/or venue required by Applicable Law; and (ii) End-User must, within thirty days of the commencement of its Subscription Term, notify Code42 (directed to legal@code42.com) to identify the Applicable Laws that apply to End-User and the resulting modifications to the governing law and/or venue provisions of this EULA.
    3. ENTIRE AGREEMENT.  This EULA sets forth the entire agreement and understanding between Code42 and End-User regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or agreements (including non-disclosure or confidentiality agreements), whether oral of written, regarding the same subject matter. Code42 does not accept, expressly or impliedly and Code42 hereby rejects and deems deleted any additional or different terms or conditions that End-User presents, including, but not limited to, any terms or conditions contained or referenced in any Order, acceptance, acknowledgement, or other document, or established by trade usage or prior course of dealing.  
    4. WAIVER. The failure by Code42 at any time to enforce any of the provisions of this EULA or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this EULA.  The waiver of any default by Code42 will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
    5. CORRECTION OF ERRORS AND INACCURACIES.Code42 reserves the right to correct any errors, inaccuracies or omissions and to change or update this EULA at any time without prior notice.  Code42 does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.
    6. HEADINGS. The section headings appearing in this EULA 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.
    7. NO JOINT VENTURE.  This EULA shall not be construed as creating any partnership, joint venture or agency relationship between Code42 and the End-User.
    8. ASSIGNMENT AND RESALE.  Code42 may assign its rights and obligations under this EULA but End-User’s rights under this EULA are not assignable or transferable; provided, however, End-User may assign its rights under this EULA in connection with a merger, acquisition or sale of a majority of its assets upon written notice to Code42 (directed to legal@code42.com), although this may require You to purchase additional Professional Services. End-User agrees not to resell the Code42 Products and Services or any portion thereof. This EULA will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
    9. NO THIRD PARTY BENEFICIARIES.No third-party beneficiaries are intended or shall be construed as created by this EULA.
    10. EXPORT COMPLIANCE. End-User may not use or otherwise export or re-export the Code42 Products and Services except as authorized by United States law and the Applicable Laws of the jurisdiction in which the Code42 Products and Services were obtained.  In particular, but without limitation, the Code42 Products and Services may not be exported or re-exported (i) into any U.S. embargoed countries, or (ii) 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 and Services, End-User represents and warrants that End-User is not located in any such country or on any such list. End-User also agrees that it will not use these products for any purposes prohibited by United States law.

 

  1. ENGLISH LANGUAGE CONTROLS.  This EULA was prepared in the English language. For purposes of convenience, this EULA may be available in other languages. In case of discrepancies or conflicts between the English text version of this EULA and any translation, the English version shall prevail.

 

  1. EQUAL OPPORTUNITY.  Code42 is committed to the provisions outlined in the Equal Opportunity Clauses of Executive Order 11246, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Act of 1974, the Jobs for Veterans Act of 2003, as well as any other regulations pertaining to these orders.

 

  1. QUESTIONS.

Any questions regarding this EULA should be directed to legal@code42.com.

 

Last Modified:  August 26, 2015.
Copyright 2015,
Code 42 Software, Inc.
All Rights Reserved.