- CrashPlan for Small Business
End User License Agreement (“EULA”)
FOR CRASHPLAN FOR SMALL BUSINESS
This EULA is a legal agreement between You (“You” or “Your”), and either (a) Code42 Software, Inc., a Delaware corporation with its principal place of business at One Main Street SE #400, Minneapolis, Minnesota 55414 U.S.A. (“Code42 US”) if Your Code42 Products and Services (as defined in this EULA) are delivered to, deployed or rendered in the United States or any other country, other than Australia or New Zealand, or (b) with respect to all Code42 Products and Services that are delivered to, deployed or rendered within Australia or New Zealand, Code 42 Australia Pty LTD, a company incorporated under the laws of Australia, with its principal place of business at Level 28, 1 Market Street, Sydney NSW 2000, Australia and phone number +61 29 265 3000 (“Code42 Australia”). Code42 US and Code42 Australia are collectively referred to herein as “Code42,” “We,” “Our” or “Us.”
This EULA governs Your use of the Code42 Software, Support and the Public Cloud (collectively “Code42 Subscription Services”), and Documentation. Code42 Subscription Services and Documentation are individually and collectively referred to as "Code42 Products and Services".
BY OPERATING, DOWNLOADING, INSTALLING, REGISTERING OR OTHERWISE USING THE CODE42 PRODUCTS AND SERVICES, OR CLICKING AN "I ACCEPT” OR “CONTINUE" BUTTON ASSOCIATED WITH THIS EULA, YOU (OR YOUR AUTHORIZED AGENT, IF APPLICABLE) AGREE THAT YOU ARE OVER 18 YEARS OLD AND YOU HEREBY AGREE TO THE TERMS OF THIS EULA ON YOUR OWN BEHALF OR ON THE BEHALF OF YOUR ORGANIZATION. IF YOU ARE ENTERING INTO THIS EULA FOR AN ORGANIZATION, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF THE ORGANIZATION AND BIND THE ORGANIZATION TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA, IN WHICH CASE “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS EULA OR ARE NOT AUTHORIZED TO AGREE TO THIS EULA ON BEHALF OF THE ORGANIZATION YOU ARE REPRESENTING, DO NOT OPERATE, DOWNLOAD, INSTALL, REGISTER OR OTHERWISE USE THE CODE42 PRODUCTS AND SERVICES.
1. Auto renewal
TERMS UPON EXPIRATION OF ANY EVALUATION LICENSE OR UPON EXPIRATION OF YOUR SUBSCRIPTION TERM, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW MONTHLY AT THE PUBLISHED MONTHLY RATE, PLUS APPLICABLE TAXES, IN ACCORDANCE WITH THE THEN-CURRENT TERMS SET OUT HERE. YOU ACKNOWLEDGE AND AGREE THAT YOUR CODE42 SUBSCRIPTION SERVICES WILL CONTINUE UNTIL CANCELED BY YOU AND, UNTIL YOU CANCEL, YOU AUTHORIZE US OR OUR CODE42 PARTNER (AS APPLICABLE) TO CHARGE YOUR DESIGNATED CARD FOR THE THEN-CURRENT MONTHLY SUBSCRIPTION FEES, PLUS TAXES.
2. Processing locations
Code42 makes no representations that the Code42 Products and Services are appropriate for use in other locations outside of the United States. Your User Data will be stored in data centers located within the United States, if your agreement is with Code42 Software, Inc., or Australia, if your agreement is with Code42 Australia. All of Your support and account information will be stored in the United States. If You are located within the European Union, Code42 and its parent/subsidiary company(ies) participate in and have certified compliance with the EU-U.S. Privacy Shield Framework. Code42 is committed to subjecting all personal data received from European Union (EU) member countries, in reliance on the Privacy Shield Framework, to the Framework’s applicable Principles. To learn more about the Privacy Shield Framework, visit the U.S. Department of Commerce’s Privacy Shield List at https://www.privacyshield.gov/list. Further information regarding our adherence to the Privacy Shield Framework and how we protect Your personal data can be found in our Privacy Statement.
If You use the Code42 Products and Services in or from locations outside the United States, You consent to the processing of Your personal data in the locations set forth in this EULA when You agree to the terms of this EULA. Unless otherwise provided by the Australian Consumer Law, Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and Section 15 for Code42 Australia customers, You are responsible for compliance with all applicable laws and regulations related to Your personal data.
3. Changes to the EULA
Code42 reserves the right, at any time in its discretion, 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. Unless otherwise required by Applicable Law, 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 change will constitute Your acceptance of any and all such changes.
a. “Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with a party, where “control” means the ownership or control, directly or indirectly, of more than 50 percent of all of the voting shares.
b. “Applicable Law” shall mean all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over Code42 and You.
c. "Code42 Partner" means a third party reseller, distributor, and/or payment processor authorized by Code42 to sell Code42 Products and Services and/or process payments related to Your Code42 Subscription Services.
d. "Code42 Software" means Code42-branded software, and any Modifications thereto, licensed on a subscription basis as part of the Code42 Subscription Services.
e. “Code42 Users” means employees, contractors or other persons authorized by You to use (i) the Code42 Software on one or more Devices (not to exceed 4 Devices per individual Code42 User) to backup User Data (either active or inactive) or (ii) other features of the Code42 Products and Services.
f. "Device" means any computer, tablet, smartphone, or other electronic device on which the Code42 Software is installed.
g. "Documentation" means written, published information accessible on Code42's support site, as may be updated from time to time.
h. "Modifications" means additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to the Code42 Software licensed by You.
i. “Order” means Your order of Code42 Products and Services.
j. “Public Cloud” means the cloud-based backup storage services provided by Code42.
k. “Subscription Term” means the evaluation or paid for, a one-month period of time beginning on the date of acceptance of this EULA.
l. “Support” means the support and maintenance services performed by Code42 related to the Code42 Software and Public Cloud, a descriptions of which are accessible via http://support.code42.com/Support.
m. "User Data" means all content and materials backed up, stored, indexed, or otherwise transmitted by You to the Public Cloud in an encrypted form using the Code42 Software.
n. “Usage Data” means any and all aggregated information reflecting the access or use of the Software and Subscription Service by or on behalf of You or a Code42 User, 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.
5. Grant of license and subscription; restrictions
a. EVALUATION SUBSCRIPTION LICENSE. If You choose to use the Code42 Software for evaluation purposes, Code42 grants You, subject to the terms of this EULA, a no charge, nonexclusive, nontransferable, non-sublicenseable, revocable, limited (i) license to use the Code42 Software; and (ii) subscription to the Public Cloud, both for evaluation purposes only and for a thirty (30) day term beginning the date on which You submit Your Order and agree to the terms of this EULA (“Evaluation Term”). Upon expiration of the Evaluation Term, and if You have not canceled Your subscription or if You have not turned off auto renew, Your subscription license will be converted to a non-evaluation monthly subscription license in accordance with Section 5.b. below. By accepting an evaluation subscription license, You acknowledge and agree that Your subscription license to the Code42 Products and Services will continue until canceled by You, and You authorize us to charge Your designated card for the then-current monthly subscription license fees, plus applicable taxes. If You do not purchase a subscription license to the Code42 Products and Services after the thirty (30) day Subscription Term, You will not be able to use the Code42 Products and Services and will be unable to backup or retrieve User Data from the Public Cloud. Code42 Products and Services licensed and/or subscribed to for evaluation purposes may not be complete or fully functional, and Code42 makes no warranties whatsoever about such Code42 Products and Services, which are provided “AS IS.” Code42 does not guarantee that it will continue to make available Code42 Products and Services for evaluation under this Agreement or at all.
b. NON-EVALUATION SUBSCRIPTION LICENSE. Subject to the terms of this EULA, Code42 grants to You a nonexclusive, nontransferable, non-sublicenseable, revocable, limited license to use those Code42 Products and Services that You have validly licensed and subscribed to use solely for Your internal business purposes. You will be billed for the number of Devices on which You’ve installed Your subscription to the Code42 Software. You understand and agree that the Code42 Software may contain unlicensed add-on features for which You are not licensed to use and which may be licensed to You for additional fees.
c. CANCELLATION. Your subscription license can be canceled at any time by emailing us at firstname.lastname@example.org or following the process set forth here. If you cancel, your subscription license will terminate at the end of the then-current Subscription Term and, thereafter, you will not be able to access your User Data in the Public Cloud. Cancelling a subscription license stops recurring subscription license charges; provided, however, that You will not be entitled to a refund of fees previously paid for the current Subscription Term or otherwise. Canceling your subscription does not uninstall the Code42 Software from your Devices. You may uninstall the Code42 Software by using any uninstall utility that accompanies the installed Code42 Software or through the uninstall mechanism provided by Your compatible operating system on Your Device. Uninstalling the Code42 Software will cease all functionality of the Code42 Software and You and Code42 Users will not be able to access any User Data from such Device. User Data will be deleted in accordance with Code42’s Retention Policy.
d. RESTRICTIONS. Except as otherwise expressly provided under this EULA and unless otherwise expressly prohibited by Applicable Law, including any rights under the Australian Copyright Act 1968 (Cth) which may not be excluded by agreement between You and Code42 Australia, You shall have no right, and specifically agree not to: (i) transfer, assign or sublicense any license or subscription rights to another person or entity, and You 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 Your 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; (vi) use the Code42 Products and Services to develop any software application or similar products and services, or (vii) make or use any copies of the Code42 Software other than as necessary for backup purposes only.
6. Pricing and payment
a. PRICING INFORMATION. Pricing for the Code42 Products and Services may change from time to time. Any change in price will take effect after the expiration of Your then-current Subscription Term. If You do not agree to the change in price for Your subscription to the Code42 Products and Services, You may terminate Your subscription license in accordance with Section 13 (Termination). Your renewal of Your subscription license after a pricing change has been communicated to You constitutes acceptance of the new price.
b. PAYMENT. In order to make payments to Code42, You may be required to provide Your credit card or bank account details to Code42 or a Code42 Partner to resell and/or renew Your subscription license. Your transaction with the Code42 Partner will be subject to the terms of service between You and the Code42 Partner.
c. FEES. You are responsible for providing complete and accurate billing and contact information to Code42 or a Code42 Partner. UNLESS OTHERWISE PROVIDED HEREIN, PERMITTED BY CODE42’S PARTNER, OR REQUIRED BY APPLICABLE LAW, INCLUDING THE AUSTRALIAN CONSUMER LAW FOR CODE42 AUSTRALIA CUSTOMERS, ALL FEES ARE NON-CANCELABLE AND NON-REFUNDABLE. We may suspend or terminate Your subscription license to the Code42 Products and Services if fees are past due. The termination of this EULA for any reason shall not affect: a) Your payment obligations related to any amounts due and owing; or b) any other obligation or liability which either party has to the other, including Sections 7, 8(f), 16, 17, 18, and 19 of this EULA, which shall survive termination.
7. Intellectual property rights
a. OWNERSHIP. Subject to the limited rights expressly granted hereunder, Code42 and its licensors reserve all right, title, and interest in and to the Code42 Products and Services, including all related intellectual property rights. No rights in or to the Code42 Products and Services, the Code42 trademarks and brand features, or otherwise are granted to You hereunder other than as expressly set forth herein. You grant Code42 the limited rights that are reasonably necessary for Code42 to offer You the Code42 Products and Services (e.g., hosting Your User Data). This permission also extends to our Affiliates and Code42 Partners to offer the Code42 Products and Services (e.g., reseller and payment processing provider used to process payment of fees). Code42 may, at its discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense, any feedback You may send Code42 or post in Code42’s forums without any obligation to You. Code42 may include Your name in a list of Code42 customers on the Code42 website or in promotional materials. 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.
b. UPDATES TO CODE42 PRODUCTS AND SERVICES. Code42 reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Code42 Products and Services without notice and at any time. Code42 may add or remove functionalities or features, and suspend or stop any or all Code42 Products and Services altogether.
8. Data security
a. DATA STORAGE. Only the files You select for backup will be stored in the Public Cloud, and User Data will be deleted in accordance with Code42’s Retention Policy. Code42 Products and Services are for backup purposes only and not intended to be used for primary storage of Your User Data. Code42 may change the destination of User Data in the Public Cloud; however, Code42 will use commercially reasonable efforts to notify You (via email or other electronic communication) approximately thirty (30) days before Code42 moves the User Data to data centers if the move affects the legal treatment of the User Data. If You receive such notice and do not wish to have User Data hosted in data centers located in such other location, You may terminate Your Code42 Subscription Services with immediate effect upon written notice to Code42 (directed to email@example.com) within thirty (30) days of Code42’s notification. Unless otherwise provided under the Australian Consumer Law and Section 15 of this EULA for Code42 Australia customers You are solely responsible for the loss of any User Data not stored in the Public Cloud. You may submit information to Code42 which may be required to provide Support. Such information will be encrypted by You before transmission and will not be decrypted by Code42 unless You submit a request to decrypt such information for the sole purpose of Code42’s provision of Support. Any such decrypted information shall be held by Code42 in accordance with its internal data handling requirements related to the protection of confidential information. UNLESS OTHERWISE PROVIDED UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15 OF THIS EULA FOR CODE42 AUSTRALIA CUSTOMERS, CODE42 SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY UNLAWFUL OR UNRIGHTFUL USER DATA UPLOADED TO THE PUBLIC CLOUD.
b. PUBLIC CLOUD. User Data stored to the Public Cloud is stored on Code42’s servers or Code42 Partner’s servers. 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. While there is no current limitation 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 (e.g., 5 TB) on all Code42 Software subscriptions.
c. ACCOUNT DETAILS AND PASSWORD. You are responsible for all activities that occur under Your accounts. You are responsible for ensuring the security and confidentiality of all account and password details, that they are not provided to anyone that is not a Code42 User, and that they are not shared with anyone else in order to prevent unauthorized access to Your account and/or User Data. Except as otherwise provided under the Australian Consumer Law and Section 15 of this EULA for Code42 Australia customers, Code42 is not liable for any loss or damage arising from any access to, sharing or use of Your account, password(s) or User Data. If You believe there has been any unauthorized access to Your account, You must notify Code42 immediately at firstname.lastname@example.org.
d. DELETED FILES. By default, and unless otherwise modified by You, all deleted files are maintained by Code42, at Code42’s discretion, space permitting, for at least thirty (30) days. In account settings, You can customize the period of time Code42 would maintain a deleted file.
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.
f. SURVEILLANCE. The Code42 Software may contact Code42 to verify the status of any Code42 Subscription Services and to confirm that You are using the Code42 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 You and Your Code42 Users can locate their Devices.
g. PROTECTED INFORMATION. You represent and warrant that You will not submit any Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any personally identifiable information subject to regulatory protection under U.S. law (“Protected Information”) to Code42, whether as part of the Code42 Products and Services or otherwise. Notwithstanding anything to the contrary in this EULA, You recognize and agree that Code42 shall have no liability whatsoever under this EULA or otherwise for any Protected Information You provide in violation of this Section, and You agree to fully indemnify and hold harmless Code42 from any third party claims resulting from a violation or alleged violation of this Section.
9. Privacy and customer information
a. In order to operate and provide the Code42 Products and Services, we collect certain information about You. As part of the Code42 Products and Services, we may also automatically upload information about Your computer or device, Your use of the Code42 Products and Services, and the performance of the Code42 Products and Services. We use and protect that information as described in our Privacy Statement. You further acknowledge and agree that we may access or disclose information about You in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Code42 or our customers, including the enforcement of our agreements or policies governing Your use of the Code42 Products and Services; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Code42 employees, customers, or the public.
We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Code42 Products and Services as part of our efforts to protect the Code42 Products and Services, protect our customers, or stop You from breaching this EULA.
b. This Section 9(b) applies if Your relationship is with Code42 Australia. Code42 Australia stores Your User Data which may contain personal information (as that term is defined in the Australian Privacy Act 1988 (Cth)) on Your behalf, as agent for You. Code42 Australia will only handle Your User Data for the purpose of performing its obligations and ensuring You have access to Your User Data in accordance with this EULA. You maintain effective control of how Your User Data is handled by retaining the right to access, change and retrieve Your User Data, limiting others' use of Your User Data and specifying security measures that are used in relation to Your User Data as set out in Section 8 (Data Security); and (ii) for additional information on Code42’s privacy practices, please see our Privacy Statement.
10. User data
You represent and warrant that Your 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 related 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)). 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 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. IN NO EVENT WILL CODE42 BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU MAY HAVE RELATED TO YOUR USER DATA, EXCEPT AS OTHERWISE PROVIDED UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15 OF THIS EULA FOR CODE42 AUSTRALIA CUSTOMERS. RELATED TO THE HANDLING OF ITS PROTECTED USER DATA, YOU SHALL HAVE AND MAINTAIN APPROPRIATE POLICIES AND PROCEDURES FOR CYBERSECURITY AND TO ENSURE COMPLIANCE WITH YOUR REGULATORY OR LEGAL OBLIGATIONS.
For continuity of performance, You agree that Code42 may, at any time in its sole discretion, access the Code42 Software on Your Device(s), and/or cause the Code42 Software installed on Your Device 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 12 for more information on Open Source Software).
12. 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 representative list of Open Source Software can be found here.
This EULA shall be effective as of the date you accept it and shall continue in effect until terminated by either party or otherwise terminated as set forth in this EULA. Either of us may, at our election and in our sole discretion, terminate this EULA and any subscription to the Code42 Products and Services at will, at any time. Code42 reserves the right to temporarily suspend or terminate Your access to the Code42 Subscription Services at any time in our sole discretion, with or without cause, with or without notice, and without incurring liability of any kind for: (a) the actual or suspected violation of this EULA; (b) the use of the Code42 Subscription Services in a manner that may cause Code42 to have legal liability or disrupt others' use of the Code42 Subscription Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by You or in Your subscription; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If, in Code42’s determination, the suspension might be indefinite and/or Code42 has elected to terminate Your subscription, Code42 will use commercially reasonable efforts to notify You by email to the email address associated with Your account information. YOU ACKNOWLEDGE THAT IF YOUR ACCESS TO THE CODE42 SUBSCRIPTION SERVICES IS SUSPENDED OR TERMINATED, YOU AND CODE42 USERS WILL NO LONGER HAVE ACCESS TO USER DATA THAT IS STORED WITH THE PUBLIC CLOUD.
14. 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, the Code42 Products and Services, in the form delivered by Code42, will perform substantially in accordance with the Documentation when installed and operated in accordance with Code42 specifications. In the event the Code42 Products and Services fails to perform in accordance with the Documentation during the warranty period, Code42 will endeavor to correct any failure of the Code42 Products and Services to so perform, provided Code42 receives written notice from You within said ninety (90) day warranty period.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE42 PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CODE42 MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE CODE42 PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. WITH RESPECT TO CODE42 AUSTRALIA CUSTOMERS, THE LIMITATIONS IN THIS SECTION 14 ARE SUBJECT TO YOUR RIGHTS UNDER THE AUSTRALIAN CONSUMER LAW AND SECTION 15 OF THIS EULA.
15. Limitation of remedies – Australian customers
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 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.
16. Limitation of Code42 liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL CODE42, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF CODE42 HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF CODE42 AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE CODE42 PRODUCTS AND SERVICES WILL BE LIMITED TO the amounts actually paid to CODE42 by YOU in the twelve (12) month period immediately preceding YOUR formal written notice of the claim for liability hereunder. All claims that YOU may have against CODE42 will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW. 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 OF THIS EULA.
a. By You. You will indemnify, defend, and hold harmless Code42 from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Code42 or its Affiliates regarding: (i) User Data; or (ii) Your or Your Code42 Users’ use of the Code42 Products and Services in violation of this EULA.
b. By Code42. Subject to Section 15 herein, Code42 will indemnify, defend, and hold harmless You from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against You to the extent based on an allegation that the Code42 Products and Services, as delivered, infringe or misappropriate any copyright, trade secret, U.S. patent, or trademark right (collectively, “Intellectual Property Rights”) of such third party. In no event will Code42 have any obligations or liability under this section arising from: (i) use of any Code42 Products and Services in a modified form or in combination with materials not furnished by Code42, and (ii) any content, information, or data provided by You, Code42 Users, or other third parties.
c. Possible Infringement. If Code42 believes the Code42 Products or Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Code42 may: (i) obtain the right for You, at Code42’s expense, to continue using the Code42 Products and Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Code42 Products and Services so that they no longer infringe. If Code42 does not believe the options described in this section are commercially reasonable or feasible then Code42 may suspend or terminate Your use of the affected Code42 Subscription Services (with a pro-rata refund of prepaid fees for the Code42 Products and Services).
d. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) the indemnified party’s prior written consent will be required for any settlement (x) involving a finding or admission of an indemnified party’s breach of any obligation to a third party; (y) affecting any other claim that may be made against the indemnified party or any defense that the indemnified party may assert against any such claim; or (z) the relief provided in connection with such settlement is anything other than monetary damages. THE INDEMNITIES ABOVE ARE CODE42’S AND YOUR ONLY REMEDY UNDER THIS EULA FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
18. U.S. governmental user purchases
If You are a U.S. government entity, You acknowledge that the Code42 Products and Services licensed by Code42 to You are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
19 General provisions
a. SEVERABILITY. This EULA applies to the maximum extent permitted by relevant law. In the event that any provision of this EULA is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this EULA will remain in full force and effect.
b. CHOICE OF LAW. If 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 You irrevocably submits to the jurisdiction and venue of any such court for such purpose. If 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 You 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.
c. ENTIRE AGREEMENT. This EULA together with the policies referenced herein, and all of which are incorporated herein, sets forth the entire agreement and understanding between Code42 and You and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. You acknowledge that You have not been induced to enter into this EULA by any representations or statements, oral or written, not expressly contained in this EULA. Headings contained in this EULA are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this EULA. As used in this EULA, “including” means “including without limitation”.
d. WAIVER. The failure of either party to insist upon or enforce strict performance of any of the provisions of this EULA or to exercise any rights or remedies under this EULA will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
e. ASSIGNMENT AND RESALE. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Code42 Products and Services.
f. EXPORT COMPLIANCE. The export and re-export of User Data using the Code42 Subscription Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Code42 Products and Services may not be used in any country that is subject to an embargo by the United States and You must not use the Code42 Products and Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, You must ensure that the Code42 Products and Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
g. THIRD PARTY BENEFICIARIES. Except as otherwise provided in this EULA and except for Code42’s successors, permitted assigns, or Code42 Partners, each party agrees that there are no third party beneficiaries to its rights or remedies provided within this EULA.
20. Questions or additional information
If You have any questions regarding this EULA or wish to obtain additional information, please send an email to email@example.com.
Last Modified: October 31, 2016. Copyright 2006-2016, Code42 Software, Inc. All Rights Reserved.