Terms of Service
These Terms govern Your use of any Carbonite service offerings or features including free services, the Carbonite websites, any downloadable client software which is provided solely for the purpose of accessing the Services (a "Client"), and any updates and written documentation (together with the Client, the "Services"). Your continued use of the Services following modification to the Services or these Terms, constitutes Your agreement to be bound by the application of the Terms to the modified Services or the modified Terms. To stay informed of any changes, please review the most current version of these Terms at www.carbonite.com/terms. If You do not agree to be bound by these Terms, You may not use the Services.
To access and use the Services, You must create a Carbonite account that is protected by a username and password (Your "Account"). You agree to provide Carbonite with accurate and complete information when You register for an Account. You agree to keep Your password and other Account details secret, and not share them with anyone else, in order to prevent unauthorized access to Your Account. If Your contact information or other Account information changes, You must update Your Account details promptly. After You create an Account, You may upload, download and access content and materials (Your "User Data") for which You have a legal right to copy, publish, share, store, or otherwise use.
If You obtained access to the Services through a legal entity such as Your business, or through a Carbonite authorized reseller, You acknowledge and agree that other users may have been designated to access, control or manage Your Account and Your User Data. You, not Carbonite, are solely responsible for Your Account and User Data. Carbonite is not liable for any loss or damage arising from any access to, sharing or use of, Your Account and User Data. If You believe there has been unauthorized access to Your Account or Your User Data, You must notify email@example.com immediately.
Your subscription to the Services will begin on the earliest of (1) the day and time You click the "I AGREE" button (2) when You first use the Services or (3) the start date of the Subscription Period (as defined below) as provided to You by an authorized Carbonite representative. Subscriptions last for a fixed period of time, for example, 15 day free trial, 1 year subscription, 3 year subscription, etc., unless it is a free Service as defined below or a pay-as-you-go service charged by a third-party provider (the "Subscription Period").
To ensure there is no disruption in Your Service, Your subscription may automatically renew at the end of the Subscription Period and Carbonite will charge the then-current renewal fees to the credit card associated with Your Account, unless You cancel Your subscription. If You cancel Your subscription, Carbonite is not obligated to refund subscription charges already paid and cancellation will take effect at the end of the current Subscription Period unless a sooner date is requested. After cancellation, You will no longer be able to use any Services or access Your Account or User Data. Your subscription will automatically terminate or expire upon the earliest of (1) non-renewal, cancellation or expiration of a subscription or failure to pay subscription fees when due, if applicable, (2) Carbonite's discontinuation of the Services, or (3) failure to comply with these Terms. You acknowledge and agree that after non-renewal, cancellation or expiration of Your Subscription Period, Carbonite's policy is to automatically delete all User Data protected by Your Account that is stored on Carbonite servers or on Carbonite’s third-party cloud storage providers.
Free Services. Carbonite may offer free Services. Free Services require an active Account and may be subject to certain usage limits, which are explained in the documentation for each free Service. Free Services associated with Your Account that remain inactive for a period of ninety days may be removed and Your User Data deleted. Carbonite may discontinue free Services at any time and from time-to-time, at which point Your access to the free Service will end and any User Data will be deleted.
Beta Services. Carbonite may designate certain enhancements and new releases of the Carbonite Services as "Beta Services." Beta Services are not intended for use in a production environment. You acknowledge and agree that (1) Beta Services are experimental in nature, have not been fully tested and may be discontinued at any time, (2) Beta Services may not meet Your requirements or perform as intended, (3) use of Beta Services may not be uninterrupted, error free or free of faults, (4) Your use of Beta Services are for the sole purpose of evaluating and testing the service and providing feedback to Carbonite, and (5) You shall inform Your employees and other users regarding the nature of Beta Services. By using Beta Services You acknowledge the above conditions and expectations of performance and reliability. Your use of Beta Services is and shall be subject to these Terms.
Compliance with Law. You are solely responsible for ensuring that Your use of the Services is in compliance with all applicable federal, state and local laws, foreign laws, rules and regulations. The Services provide for the uploading and downloading of User Data, and the accessing, hosting, storing, sharing and/or publishing of such User Data. You shall be solely responsible for Your User Data. Carbonite does not endorse and has no control over the content of User Data submitted by other users. Carbonite assumes no responsibility whatsoever in connection with or arising from User Data or for actively monitoring User Data for inappropriate or illegal content. In addition, the Services may use data received or obtained from Your device to determine Your location ("Location Data"). By using the Services, You hereby consent and permit Carbonite to use Location Data in order to provide the Services to You. Carbonite does not make any representation, warranty or guarantee of accuracy, completeness or timeliness with respect to any Location Data.
It is Your responsibility to use the Services in accordance with these Terms of Service. You shall defend, indemnify and hold Carbonite, its officers, directors, shareholders, affiliates, suppliers and licensors, harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys' fees, expert fees and out-of-pocket expenses) in connection with Your use of the Services, Your violation of these Terms, any violation of the rights of any other person or entity by You, including any intellectual property rights, any misuse or fraudulent use of credit and debit cards, any claims that the Services or any party thereof were exported or otherwise shipped or transported by You in violation of applicable laws, rules and regulations, or any claim of misuse of the Services, including but not limited to, any claim that Your use of the Services, Your User Data, or Location Data is illegal.
Your Conduct. Carbonite may, immediately and without notice to You, terminate Your access to and use of the Services, including if You (1) harm, disrupt or otherwise engage in activity that diminishes the Carbonite brand, Services, computer system or network, (2) misrepresent Your identity, impersonate any person or attempt to gain access to or illegally track any Account, computers or networks related to the Services, without authorization, (3) use or manipulate a Service in any manner not specified by Carbonite, (4) use the Services in a manner that results in excessive bandwidth usage, as determined by Carbonite, (5) use the Services for any illegal purpose, or to store, backup or distribute any illegal or unauthorized files or data, (6) use the Services to store, backup or distribute material protected by intellectual property rights of a third-party unless You own or have appropriate rights to such material, (7) use the Services to store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of the Services or another person's Device, data or property, (8) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services, (9) alter or modify any disabling mechanism which may be included in the Services, or (10) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Services, or (11) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) from the Services.
Compliance with HIPAA. This section applies to You if You are a Covered Entity (as defined in 45
C.F. R. §160.103 under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA
Rules")). If You have any question about whether You are a Covered Entity, Carbonite encourages
You to use the decision tool provided by the U.S. federal government website and managed by the
Centers for Medicare & Medicaid Services, found at http://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/AreYouaCoveredEntity.html and to seek independent legal advice. You acknowledge that (1)
Carbonite does not require access to any User Data in order to perform the Services, (2) all User Data
is encrypted prior to receipt by Carbonite and (3) You do not intend to disclose any unencrypted User
Data to Carbonite. Further, if You are a Covered Entity, Carbonite requires that You use or subscribe
to Carbonite’s advanced private encryption key management (“PEKM”) service offering. Carbonite’s
advanced PEKM service offering requires that You manage Your own encryption key, as a result of
which You will have sole and exclusive access (including as to Carbonite) to all of Your User Data,
including, but not limited to, any confidential health-related information that may constitute Protected
Health Information as defined under the HIPAA Rules ("PHI"). You further acknowledge that, as a
result of Your use of Carbonite’s advanced PEKM service offering, Carbonite has no ability to view or
access Your User Data even on a random, infrequent, transient or incidental basis. It is Your
responsibility to determine if You are a Covered Entity and if any User Data may be deemed to be PHI.
If, in fact, You are a Covered Entity under the HIPAA Rules and You are using the Services to backup
PHI, but You fail to choose the advanced PEKM service offering to back up PHI, then You are in
violation of these Terms of Service and You are not permitted to use these Services.
You may be required to download a Client. The Client is licensed to You for the sole purpose of accessing the Services. The Services may automatically update the Client installed on Your computer, tablet, smartphone or any other electronic device (each, a "Device") when a new version is available. While You have an active Account, Carbonite grants You a revocable, limited, non-transferable, non-exclusive license to access the Carbonite website and use the Client and Services for Your personal or internal business purposes only. You may use the Services only in accordance with the then-current documentation and customer support available at www.carbonite.com, www.zmanda.com or as specified in other documentation provided by Carbonite or an authorized reseller. The Services may contain, or Carbonite may provide to You, third-party hardware, products, software or programming, or You may obtain third-party hardware, products, software or programming from third parties directly (the "Third-Party Components"), and You acknowledge that license terms accompanying such Third-Party Components will govern their use. For a list of open source Third-Party Components contained in the locally installed Client(s), please click here. Except for the limited license granted herein, You acknowledge that Carbonite or third parties own all right, title and interest in and to the Services, all copies thereof and all proprietary rights therein, including copyrights, patents, trademarks, logos, domain names or other brand features of Carbonite. You may provide feedback to Carbonite with respect to the Services and Carbonite may use feedback for any purpose without obligation of any kind. To the extent a license is required under Your intellectual property rights to make use of the feedback, You hereby grant Carbonite an irrevocable, non-exclusive, perpetual, royalty-free license to use the feedback in connection with Carbonite's business, including enhancement of the Services.
Carbonite may discontinue, suspend or modify the Services, any feature included in the Services, or the availability of the Services on any particular Device at any time and without notice to You. If any third-party makes an intellectual property infringement claim relating to the Services, Carbonite reserves the right to immediately terminate Your subscription. While not obligated to do so, Carbonite will endeavor to communicate any such actions to You by providing electronic notice to You or by posting relevant information to the Carbonite website.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
YOUR INSTALLATION, USE AND ACCESS OF THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR DEVICE, SOFTWARE AND THE LOSS OF YOUR USER DATA THAT RESULTS FROM THE USE THEREOF. DEPENDING ON THE SERVICES YOU CHOOSE TO UTILIZE, YOUR USER DATA MAY NOT BE AVAILABLE OR RESTORABLE IF (1) CARBONITE HAS NOT COMPLETED COPYING OR SYNCING YOUR USER DATA, (2) FOR FILES, FOLDERS OR DISK DRIVES THAT THE SERVICES DO NOT AUTOMATICALLY BACKUP OR SYNC PURSUANT TO CARBONITE DOCUMENTATION, YOU DO NOT MANUALLY SELECT THEM FOR BACKUP OR SYNCING OR YOU UNSELECT CERTAIN USER DATA FOR BACKUP OR SYNCING, (3) YOU DELETE CERTAIN USER DATA FROM YOUR DEVICE AND DO NOT RESTORE IT WITHIN 30 CALENDAR DAYS AFTER DELETION, OR YOU DELETE A DEVICE FROM YOUR CARBONITE ACCOUNT, (4) YOU MOVE USER DATA TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP OR SYNCING, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING, (5) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE, (6) CARBONITE SERVERS OR NETWORK SERVICE IS UNABLE TO MAKE A CONNECTION WITH YOUR DEVICE, (7) YOU FAIL TO FOLLOW CARBONITE'S TECHNICAL REQUIREMENTS, AND DOCUMENTATION FOR UTILIZING THE BACKUP SERVICES, INCLUDING UPGRADING THE VERSION OF THE SERVICES AS REQUIRED, AND PERIODICALLY TESTING YOUR BACKUPS AND RESTORES, OR (8) YOU TERMINATE YOUR LICENSE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE SERVICES.
THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT CARBONITE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (2) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR USER DATA, WEBSITES, DEVICES AND NETWORKS. CARBONITE IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR ACCOUNT, YOUR USER DATA AND YOUR DEVICES. YOU ACKNOWLEDGE AND AGREE THAT CARBONITE SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CONTACT OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL INFORMATION ABOUT THE SERVICES. THE SERVICES AND THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. CARBONITE DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES. CARBONITE DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CARBONITE SHALL CREATE ANY ADDITIONAL CARBONITE WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF CARBONITE'S OBLIGATIONS HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CARBONITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR USER DATA, OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF USER DATA OR BUSINESS INTERRUPTION, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICES, EVEN IF CARBONITE HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF CARBONITE FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE SUBSCRIPTION FEES PAID BY YOU TO CARBONITE IN THE 12 CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. IF THE SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN CARBONITE SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND CARBONITE'S AGREEMENT TO PROVIDE YOU THE SERVICES, AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
GENERAL LEGAL TERMS
Government Use. The Services constitute Commercial Off the Shelf ("COTS") items as that term is defined in the U.S. Government Federal Acquisition Regulations ("FAR"). Government use rights are limited to those minimum rights required by the appropriate provisions of the FAR.
Export; Terms of Service for Non-U.S. Residents. You shall not export the Services or any part thereof, directly or indirectly, to any country for which the United States requires an export license or other governmental approval. In particular, You acknowledge that the Services or any part thereof, may not be exported or re-exported to, or otherwise used in, any U.S.-embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons or Entity List. By using the Services, You represent and warrant that You are not located in any such country or on any such list. Carbonite, Inc. and Carbonite datacenters are based in the United States. Carbonite also offers, and You may choose to utilize, third-party cloud storage providers in which case the terms and conditions of such third-party cloud storage providers shall apply. Additional country-specific terms may be found here or at www.carbonite.com.
Governing Law and Arbitration. These Terms 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 these Terms, shall be in the state or federal courts, as applicable, located in the City of Boston or the County of Suffolk, Massachusetts. Any dispute, controversy or claim arising out of or relating to this Agreement, including 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 persons, or classes of individuals, entities or other persons.
Linking. The Services may contain links to other websites and resources and are provided for convenience only. Carbonite has not reviewed the linked websites and is not responsible for the content or availability of any linked websites. The inclusion of any link to a website does not imply endorsement by Carbonite of the website or their entities, products or services.
General. These Terms constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. If one or more of the provisions herein shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. Any inconsistency between these Terms in English and these Terms in any other language shall, to the fullest extent permitted by applicable law, be resolved by reference to the English version. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any subsequent default or breach. You may not assign or delegate any rights or obligations under the Terms. Any purported assignment and delegation shall be ineffective. Carbonite may freely assign or delegate all rights and obligations under the Terms, fully or partially, with or without notice to You. Carbonite may also substitute, by way of novation, any third party that assumes our rights and obligations under these Terms. If You or Carbonite cannot perform its obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third-party equipment or any other cause not within the affected party's reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a "Force Majeure Event"), then the non-performing party will, if possible and reasonable, (1) promptly notify the other party, (2) take reasonable steps to resume performance as soon as possible, and (3) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for five (5) days, Carbonite may terminate Your subscription to the Services and these Terms by providing electronic notice to You. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. The following provisions shall survive termination or expiration of this Agreement: Your Account, Your Subscription, Your Conduct, Carbonite Property, Disclaimer of Warranties; Limitation of Liability; and General Legal Terms.
Updated April 2013