This Partner Agreement (the "Agreement") is a binding legal contract between you, your employees, affiliates and contractors (referred to herein as, "You," or "Your") and Carbonite, Inc., its affiliates, licensors, and subsidiaries ("Carbonite"). You understand and agree that by executing this Agreement, You accept the obligations and conditions of this Agreement and, if You do so on behalf of a legal entity, You represent and warrant that You have the authority to execute this Agreement on behalf of that legal entity. If You do not accept the terms of this Agreement or do not have the authority to agree to the terms of this Agreement, You may not execute this Agreement and must cease any further attempt to participate in the Carbonite Partner Program.

Carbonite reserves the right at any time to modify the terms of this Agreement and the Carbonite Partner Program in its sole discretion, without liability to You or End-Users. You agree to be bound by any changes to this Agreement and the Carbonite Partner Program as modified. You shall be responsible for reviewing the most current version of this Agreement available at www.carbonite.com/partners/terms-of-use.

Partner Agreement

This Agreement sets forth the terms and conditions under which Carbonite permits You to (i) resell the Services and obtain benefits associated with the Carbonite Partner Program, (ii) access information on Carbonite websites, (iii) use the Carbonite logos and approved Carbonite Partner Program marketing materials, and (iv) obtain Carbonite technical training; all for use solely in connection with reselling the Services.

1. Definitions

As used in this Agreement the terms below shall have the following meanings:

"Activation Code" is an alpha-numeric code that You purchase from Carbonite and provide to End-Users that confirms that the Service has been purchased. Each Activation Code is unique and will expire 12 months after the date purchased.

"Carbonite Partner Program" means partnership tiers, marketing and the eligibility requirements that dictate differentiation in the Carbonite Partner Program.  Details on the program are specifically described on the Website, in Section 9 of this Agreement, and in other documentation provided to You by Carbonite.

"End-User" means an individual or entity to which You resell the Services. Upon agreeing to the Terms of Service or accessing or using the Services, a person or entity becomes an End-User of Carbonite’s Services.

"Documentation" means all information contained on the Website, located in the Partner Portal, the Partner Program Guide, and other collateral Carbonite makes available from time-to-time.

"Intellectual Property Rights" means all rights, priorities, and privileges relating to intellectual property of any nature, arising under copyrights, patents, trademarks, trade secrets, and know-how, as well as licenses and applications relating to any of the foregoing, including, but not limited to, all such rights in the Services.

"Metallic Partner" means a partner, as defined by the Partner Program Guide, who has agreed to and complies with the terms of this Agreement and the Documentation, and has provided Carbonite with a valid tax exemption certificate, as set forth in Section 4(b).

"Partner Program Guide" means the documentation which sets forth the terms and conditions of the Carbonite Partner Program.

"Partner Portal" means the dedicated partner dashboard available at www.partner.carbonite.com which is accessible with Your unique partner account login credentials.

"Services" means any of Carbonite’s servie offerings and feastures and any components that support the functionality of the services, websites and any Documentation, as defined herein.

"Terms of Service" means the terms of service agreement between Carbonite and End-Users pursuant to which End-Users download and receive Services.

"Trademarks" means all rights in and to U.S. and foreign trademarks, service marks, trade dress, trade names, brand names, logos (including the Carbonite logos), trade dress, corporate names and domain names, whether or not registered, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case, whether registered or unregistered, and including, but not limited to, all registrations and applications for, and renewals or extensions of, these rights, and all similar or equivalent rights or forms of protection in any part of the world.

"Website" means the Carbonite website currently located at www.carbonite.com, and any other website owned, operated, licensed or controlled by Carbonite.

2. Partner Appointment

  1. Appointment. Subject to the terms of the Carbonite Partner Program and this Agreement, Carbonite appoints You a non-exclusive Carbonite Authorized Partner, and You are hereby authorized to market and resell the Services as long as You are in compliance with this Agreement or until this Agreement is terminated pursuant to Section 6. This Agreement grants You a non-exclusive right to purchase and resell the Services only to End-Users for their internal use. Carbonite hereby grants You the right to bundle the Services with additional products and services, subject to Carbonite’s right to disapprove any such bundle. Carbonite may, in its sole discretion, sell the Services to any other person or entity, including, but not limited to, partners and End-Users. You are permitted to purchase and resell similar products and services from other vendors; however You agree that you shall commit substantial efforts and resources to promote the Services while this Agreement is in effect. You further acknowledge that during the term of this Agreement Carbonite may share Your contact information with Carbonite’s authorized distributors.
  2. Partner Portal Access. Your use of the Partner Portal is subject to this Agreement, the Partner Program Guide referenced in Section 9, and any additional terms within the Partner Portal. You must create a private account password that will allow you to access the Partner Portal. You are responsible for keeping Your password confidential. You are responsible for all transactions registered to Your account.
  3. End-User Accounts. You understand and agree that each End-User must have an individual subscription to use the Services. For the avoidance of doubt, You are prohibited from purchasing a single subscription to the Services and using it to support multiple End-Users. For purposes of clarity, You are prohibited from purchasing a single subscription to Carbonite’s server solution and using that subscription to back up multiple servers for different customers.
  4. Your Performance Obligations. You acknowledge and agree the Terms of Service are incorporated herein by this reference. Your purchase of the Services from Carbonite, that you resell or intend to resell to others are subject to the Terms of Service. You shall require End-Users to agree to the Terms of Service prior to any use of the Services. If the Terms of Service is printed or signed in hard copy, You shall promptly send Carbonite a copy of each signed Terms of Service. If you agree to the Terms of Service on behalf of an End-User, You represent and warrant that You have the authority from the End-User to accept such Terms of Service on their behalf and You shall be liable for any failure by You or such End-User to comply with the Terms of Service. Carbonite may terminate access to the Services and delete data stored by Carbonite consistent with the requirements of the Terms of Service. In addition, You shall at Your own expense:

    (i) market, advertise, promote, and resell the Services to End Users in a manner that reflects favorably at all times on the Services and the good name, goodwill, and reputation of Carbonite, and consistent with good business practice, and in each case use Your commercially reasonable efforts to maximize the sales volume of the Services;

    (ii) have sufficient knowledge of the industry and Services (including, but not limited to, specifications, features, and benefits) so as to be able to inform End-Users of the differences between the Services and similar or competing offerings; and information on standard protocols and features of the Services;

    (iii) observe all directions and instructions given to You by Carbonite in relation to the marketing, advertisement, and promotion of the Services;

    (iv) respond to End Users regarding the general operation and use of the Services, including (1) acting as a liaison between the End-User and Carbonite in matters requiring Carbonite’s participation, (2) providing information and configuration support on standard protocols and features; and (3) collecting relevant technical problem identification information, and convey such information to Carbonite technical support;  

    (v) in any and all contact between You and any End-User, You must identify to the End-User Your full legal name or trade name, or both, and disclose whether you have access to End-User’s Confidential Information (as defined herein);

    (vii) obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement;

    (viii) ensure that an adequate number of trained, capable, and qualified technical personnel with sufficient knowledge of the Services are available during normal business hours to assist End-Users;

    (ix) promptly notify Carbonite of, and address and investigate, any complaint or adverse claim about the Services or its use of which You become aware;

    (x) be responsible for all credit risks and for collecting payment for all Services sold by You. Your inability to collect the fees for any Services does not affect Your obligation to pay Carbonite for any Services;

    (xi) provide a valid e-mail address of each End-User and designate that End-User as an Administrator in the Carbonite account. You agree to provide Carbonite, and You agree to ensure that Your End-Users will provide Carbonite, with accurate and complete End-User information at the time of registration and throughout the End-User’s subscription to the Service. Carbonite may send messages to each End-User regarding the Services at any time, and may market to its End-Users without compensation or any other obligation to you.

  5. Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, You shall not, nor permit others to:

    (i) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments, actually, apparently, or ostensibly on behalf of Carbonite, or to any End User regarding the Services or the Documentation that is additional to, or inconsistent with, any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement;

    (ii) resell the Services to End-Users located in Cuba, Iran, North Korea, Sudan, Syria, or any other countries that may, from time-to-time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions, or which are on any restricted person or entity list maintained by any U.S. governmental agency;

    (iii) distribute or otherwise sell any expired Activation Codes to End-Users;

    (iv) engage in any unfair, competitive, misleading, or deceptive practices respecting Carbonite, Carbonite’s Trademarks, or the Services;

    (v) display Trademarks other than in accordance with the provisions of this Agreement and Carbonite’s Brand Guidelines as set forth in Section 9;

    (vi) separate any components of the Services or sell, license, or distribute the software included in the Services on a standalone basis, or remove, translate, or modify the contents or documentation of or related to the software or Services, including, without limitation, any end user license agreements, the Terms of Service, or warranty statements;

    (vii) sell, resell, or distribute, either directly or indirectly, or assign or transfer, any Services to any person when You know or have reason to suspect that the person may resell any or all of the Services to a third party, including, but not limited to, any third party partner or distributor;

    (viii) resell Services to any governmental authority or its respective agencies without express written approval from Carbonite. Unless otherwise separately agreed to in writing between Carbonite and You, no provisions required in any U.S. government contract or subcontract related thereto shall be a part of this Agreement, imposed on or binding on Carbonite, and this Agreement is not deemed an acceptance of any government provisions that may be included or referenced in Your request for quotation, purchase order, or any other document.

3. Access to Carbonite Partner Website

  1. Scope and Grant of License. Carbonite hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Term, to access the Website and use the Documentation solely in accordance with this Agreement. Except as expressly stated in Section 5(a), no other grant of right or license to use, under any Intellectual Property Right, is made from Carbonite to You under this Agreement. Except for the rights expressly granted under this Agreement, Carbonite retains all right, title, and interest to the Services and the Documentation. You shall use the Documentation solely for the purposes of marketing and delivering the Services as permitted hereunder.
  2. Your Personnel. You shall be responsible to Carbonite for the compliance of Your personnel with this Agreement.

4. Payment and Taxes

  1. Payment. All prices are quoted in U.S. dollars. By subscribing to the Services You authorize Carbonite to invoice You or charge Your valid credit or debit card, and You agree to pay all initial and reoccurring subscription fees. Prices are subject to change at any time in Carbonite’s sole and exclusive discretion and Carbonite agrees to provide You notice of such changes on our Website or via other electronic means of communication at least thirty (30) days prior to such changes taking effect. You may cancel Your subscription to any Service for a full refund within the first thirty (30) days of purchase. After such time, if You choose to cancel, subscription fees already paid for the then-existing subscription will not be refunded to You, and termination shall be in accordance with Section 6(b) below. If Your subscription has been suspended for non-payment, it will only be reactivated upon payment, in full, of all overdue fees. You acknowledge and agree that after any non-renewal, cancellation, or expiration of a subscription to the Services, it is Carbonite’s policy to automatically delete all data that is stored on Carbonite’s servers or on third-party cloud storage providers.
  2. Renewals. To ensure there is no disruption in Your Service, You agree that Your subscription will automatically renew and Carbonite will charge the then-current renewal fees to Your credit card unless You change Your auto-renewal preferences or cancel Your subscription by notifying Carbonite. The prices for renewals may be different than those paid for a prior subscription. For certain Services, additional storage packs are automatically added and charged as needed. Fees are due and payable prior to Your subscription renewal date. Incomplete or incorrect account information may result in cancellation of Your subscription and inactivation of Your account.
  3. Lawful Use and Discrepancies. It is a violation of law for You to misuse or fraudulently use credit and debit cards. Carbonite will report all misuse and fraudulent use to government authorities, credit reporting services, financial institutions and credit card companies. Your right to raise billing discrepancies and any associated recovery is waived unless reported to Carbonite at customersupport@carbonite.com within sixty (60) calendar days after such discrepancy is discovered.
  4. Taxes. You shall pay and be solely liable for all taxes including sales, use, duties, excise, and any other taxes with respect to sale of the Services, but excluding taxes based on Carbonite’s net income, gross receipts and taxes from which You are exempt by law as evidenced by a valid tax exemption certificate ("Certificate"), when such certificate is required. To the extent that any such taxes or duties are payable by Carbonite, You agree to pay to Carbonite such taxes or duties in addition to any fees owed under this Agreement. All Metallic Partners must provide Carbonite with a Certificate in order to participate in the Carbonite Partner Program.

5. Intellectual Property Rights

  1. Trademark License Grant. Pursuant to this Agreement, Carbonite hereby grants to You a limited, non-exclusive, non-transferable, and non-sublicensable license to use Carbonite’s Trademarks during the Term solely in connection with the promotion, advertising and resale of the Services. You shall ensure that all Services sold by You and all related quotations, specifications, and descriptive literature, and all other materials carrying Carbonite’s Trademark, are marked with the appropriate trademark notices in accordance with Carbonite’s instructions and Brand Guidelines as specified in Section 9. You will promptly discontinue the display or use of any Trademark, or change the manner in which a Trademark is displayed or used with regard to the Services, when requested by Carbonite. Other than the express licenses granted by this Agreement, Carbonite grants no right or license to You, by implication, estoppel, or otherwise, to the Services or any Intellectual Property Rights of Carbonite.
  2. Ownership. Subject to the express rights and licenses granted by Carbonite in this Agreement, You acknowledge and agree that:

    (i) any and all Carbonite Intellectual Property Rights are the sole and exclusive property of Carbonite or its licensors;

    (ii) You shall not acquire any ownership interest in any of Carbonite’s Intellectual Property Rights under this Agreement;

    (iii) any goodwill derived from Your use of Carbonite Intellectual Property Rights inures to the benefit of Carbonite or its licensors, as the case may be;

    (iv) if You acquire any Intellectual Property Rights in or relating to the Services (including, but not limited to, any rights in any Trademarks, derivative works, or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Carbonite or its licensors, as the case may be, without further action by either party; and

    (v) You shall use Carbonite’s Intellectual Property Rights solely for the purposes of performing Your obligations under this Agreement and only in accordance with this Agreement and the instructions provided by Carbonite.

  3. Restrictions. You shall not:

    (i) take any action that may interfere with any of Carbonite’s rights in or to Carbonite’s Intellectual Property Rights, including, but not limited to, Carbonite’s ownership or exercise thereof;

    (ii) challenge any right, title or interest of Carbonite in or to Carbonite’s Intellectual Property Rights;

    (iii) make any claim or take any action adverse to Carbonite’s ownership of its Intellectual Property Rights;

    (iv) register or apply for registrations, anywhere in the world, for Carbonite’s Trademarks, domain names or any other Trademark or domain name that is similar to Carbonite’s Trademarks or that incorporates Carbonite’s Trademarks in whole or in confusingly similar part;

    (v) use any mark, anywhere, that is confusingly similar to Carbonite’s Trademarks;

    (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Services or any Carbonite Trademark;

    (vii) misappropriate any of Carbonite’s Trademarks for use as a domain name without prior written consent from Carbonite;

    (viii) alter, obscure, or remove any of Carbonite’s Trademarks or copyright notices, or any other proprietary notices placed on the Services purchased under this Agreement,  or other materials that Carbonite may provide;

    (ix) make or agree to any changes to the Terms of Service between Carbonite and the End-User;

    (x) allow or permit any unauthorized use or access to (a) the encryption keys, or (b) End-User Confidential Information;

    (xi) service, repair, modify, alter, replace, reverse engineer, or otherwise change the Services.

6. Term and Termination

  1. Term. This Agreement shall commence on the date You agree to the terms of this Agreement and shall remain in effect until terminated. This Agreement may be terminated by either party upon thirty (30) calendar days prior written notice.
  2. Effect of Termination. Upon any termination of this Agreement you agree that (i) all rights and licenses granted to You hereunder shall immediately cease; (ii) You shall immediately cease all display, advertising, promotion, and use of all of Carbonite’s Trademarks and shall not thereafter use, advertise, promote, or display any Trademark, or any part thereof that is similar to or confusing to the Trademarks, or any other trademark, trade name, or Services designation associated with Carbonite or the Service, and (iii) You will ensure Carbonite has up-to-date contact information, including email addresses, for End-Users You have registered for the Services. Termination of this Agreement shall not affect Carbonite’s rights and remedies set forth in this Agreement and Carbonite may contact End-Users to continue the Services with Carbonite or with an alternative authorized partner. If You do not return Carbonite owned equipment within ten (10) days of the termination of the Services, Carbonite reserves the right to charge You a one-time fee equivalent to the then-current replacement cost of said equipment, which cost shall be determined solely by Carbonite. For the avoidance of doubt, should any equipment returned by You during the term of the Agreement not operate properly and require replacement, the foregoing charge shall also apply. Any and all license rights granted to End-Users during the term of this Agreement shall survive termination of this Agreement and shall continue in full force and effect.

7. Indemnification And Limitation of Liability

  1. Indemnification. You shall defend, indemnify, and hold Carbonite harmless from and against all damages, costs, and expenses, including, but not limited to, reasonable attorneys’ fees and expenses, incurred as a result of reselling the Services, Your breach of this Agreement, or any use, misuse, loss, or destruction of any End-User Confidential Information.
  2. Limitation of Liability. CARBONITE DOES NOT MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND CARBONITE DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND WITH RESPECT TO ANY OTHER MATTER SET FORTH IN THIS AGREEMENT. CARBONITE SHALL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST REVENUES, LOST DATA, COSTS OF RECREATING LOST DATA, OR LOSS OF USE, OR ANY SIMILAR DAMAGES) RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF CARBONITE KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. YOU ACKNOWLEDGE AND AGREE THAT CARBONITE’S INTRODUCTION OF VARIOUS TECHNOLOGIES MAY NOT BE CONSISTENT ACROSS ALL PLATFORMS AND THAT THE PERFORMANCE AND FEATURES OFFERED BY CARBONITE MAY VARY DEPENDING ON COMPUTER EQUIPMENT AND THE INTERNET. CARBONITE IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM ANY DELAY IN FILLING ANY ORDER, FAILURE TO DELIVER, OR DELAY IN DELIVERY. NO DELAY IN THE SHIPMENT OR DELIVERY OF SERVICES TO END-USERS RELIEVES YOU OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. CARBONITE MAY CHANGE, MODIFY, OR DISCONTINUE THE FEATURES OF THE SERVICES AT ANY TIME AND FROM TIME-TO-TIME, IN ITS SOLE DISCRETION. CARBONITE SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID BY YOU TO CARBONITE IN THE 6 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.

8. Compliance

  1. Compliance with Laws. You hereby represent and warrant that You comply with Carbonite’s Privacy Policy (a current copy of which can be found at www.carbonite.com/privacy) at all times during the term of this Agreement. In addition, You represent and warrant that You shall comply with all applicable local, state, and federal laws and regulations, including, without limitation, the Massachusetts Data Security Law, all export laws and regulations of the United States, laws related to the use of unsolicited email (e.g., spam), and laws related to the protection of privacy interests.
  2. HIPAA. You represent and warrant that You do not create, receive, maintain, or transmit protected health information on behalf of Carbonite and thus acknowledge and agree that You are not a subcontractor of Carbonite under HIPAA, and to the extent that You create, receive, maintain, or transmit protected health information on behalf of a client of Yours who is also an End-User, Your obligations with respect to protected health information are between You and Your client. End-Users and You are responsible for notifying Carbonite in order for Carbonite to implement the Services in a HIPAA-compliant manner.
  3. Customer Data. You acknowledge that You may have access to End-User accounts and End-User stored data (the "End-User Confidential Information"), and You shall only use such access for the purpose of fulfilling Your obligations under this Agreement. You agree to communicate to Your customers any and all access You may have to their End-User Confidential Information. You acknowledge that upon termination of this Agreement such access shall terminate and any attempt to access any End-User Confidential Information shall be considered a data security breach.
  4. Confidential Information. All information and data with respect to End-Users received by You or to which You have had access, including, but not limited to End-User Confidential Information, constitutes confidential and proprietary information. You acknowledge that You may also have access to certain confidential and proprietary information concerning Carbonite’s business, plans, customers, technology and products, and other information, that is confidential, proprietary, and of substantial value, which value would be impaired if such information were disclosed to third parties. You agree not to disclose any End-User Confidential Information or other information received from Carbonite either orally or in writing, to any third party, and will not use such information for any purpose not directly related and necessary to Your performance under this Agreement. You shall not remove, overprint, or deface any notice of confidentiality, copyright, trademark, logo, legend, or other notices of ownership, proprietary rights, or confidentiality from any originals or copies of confidential information or any software or hardware component of the Services that You obtain from Carbonite.

9. Carbonite Partner Program.

You acknowledge and agree that during the term of this Agreement You will comply with, and are responsible for, viewing all terms and conditions posted in the Partner Portal or otherwise distributed to You, including, without limitation, the most current version of the following:

  1. Partner Program Guide
  2. Terms of Service
  3. Brand Guidelines

10. General

  1. Entire Agreement. This Agreement, the Terms of Service, and all Documentation provided to You constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral or written. In the event of a conflict between this Agreement, payment confirmation, or other document, the terms of this Agreement shall control.
  2. Assignment. You shall not assign this Agreement or any of Your rights, or delegate any of Your obligations hereunder, without Carbonite’s prior written consent, and any such action in violation of the foregoing shall be void.
  3. Severability and Waiver. You agree that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and You are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement. If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions. The waiver of any breach or default shall not constitute a waiver of any other right or remedy hereunder, or any subsequent breach or default.
  4. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with, this Agreement, shall be in the state or federal courts, as applicable, located in the City of Boston or Suffolk County, Massachusetts. Any dispute, controversy, or claim arising out of or relating to this Agreement, including, but not limited to, the arbitrability of the matter or the formation, interpretation, scope, applicability, termination, or breach thereof, shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed "international" within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Boston, Massachusetts. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgment upon the arbitral award may be entered by any court having jurisdiction. This section shall apply to and require arbitration of all disputes, controversies, and claims, regardless of whether such disputes, controversies, or claims concern a single individual, entity, or other person, multiple individuals, entities, or other people, or classes of individuals, entities, or other people.
  5. Independent Contractors. Each party shall act only as an independent contractor and not as an employee, agent, subcontractor, servant, or representative of the other for all purposes under this Agreement. Neither party shall have any authority to transact business or make any commitments or speak on behalf of the other party unless expressly authorized in writing by an officer of the other party. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or as joint venturers for any purpose or create an employment or fiduciary relationship between the parties. You shall not make any statement (or fail to correct any statement) which indicates that You are an agent or representative of Carbonite in any capacity, or that You are authorized by Carbonite to do more than perform the functions as detailed in this Agreement.
  6. Government Regulations. The Services and the technology included therein provided to You are subject to governmental restrictions on exports from the U.S., restrictions on exports from other countries in which such products and technology included therein may be produced or located, disclosures of technology to foreign persons, exports from abroad of derivative products thereof, and the importation and/or use of such Services and technology included therein outside of the United States. Diversion contrary to U.S. law is expressly prohibited. You represent that You are not a "Restricted Person," which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, or any other countries that may, from time-to-time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Certain information, products or technology may be subject to the International Traffic in Arms Regulations ("ITAR"). The Documentation, Services, products, and technology provided for hereunder shall only be exported, transferred, or released to foreign nationals inside or outside the United States in compliance with ITAR. The parties shall comply with all applicable local, state and federal laws and regulations, including all export laws and regulations of the United States and the European Commission Directive on Data Protection. Reseller agrees that it will not ship, transmit, or otherwise distribute the Product to another country in violation of any (i) export controls imposed by U.S. laws or regulations, including laws and regulations governing the export of encryption technology, or (ii) import controls imposed by any other country.
  7. Equitable Relief. You acknowledge that Your breach of Sections 2, 3, 5, or 8 may cause Carbonite irreparable damages which cannot be remedied in monetary awards in an action at law and, in the event of any such breach, that Carbonite shall be entitled to seek and obtain injunctive relief.
  8. Notice. Any notices pertaining to this Agreement shall be sent to legal@carbonite.com.
  9. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  10. Survival. Rights and obligations under the Agreement which by their nature should survive, including, but not limited to, all rights and obligations in Sections 2, 3, 5, 6, 7, 8, 9 and 10 and Your obligations to pay any outstanding amounts to Carbonite will remain in effect after termination and expiration hereof.

©2014 Carbonite, Inc. All Rights Reserved

I HAVE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, I UNDERSTAND THE CONTENT, AND I AGREE THAT I WILL ABIDE BY THE TERMS SET FORTH HEREIN. I UNDERSTAND THAT IF I DO NOT AGREE WITH THE FOREGOING, THEN I WILL NOT BE PERMITTED TO RESELL THE CARBONITE SERVICES OR OPERATE AS AN AUTHORIZED CARBONITE PARTNER.