Carbonite General Enterprise Terms of Service
Last updated: July 2019
1. Parties to the Agreement.
This Agreement is a legal contract between Carbonite, Inc. on behalf of itself and its affiliates and subsidiaries worldwide (collectively, “Carbonite”) and the customer identified in an Order Form (“Customer”). Each party represents and warrants that they have the authority to enter into this binding Agreement and doing so does not conflict with any other agreements to which they are a party. If Customer is purchasing Products and Services on behalf of a third party (a “Third Party End-User”), Customer represents and warrants that: (a) it is authorized to make the purchase and enter into the Agreement on behalf of the Third Party End-User asthat party’s agent and (b) the Third Party End-User is bound by this Agreement. If Customer enters into this Agreement on behalf of a Third Party End-User, Customer agrees that it is jointly and severally liable for any breach of this Agreement resulting from Customer’s acts and omissions, or the acts and omissions of the Third Party End-User or any Authorized User (as defined below) of the Third Party End-User.
2. Product and Service Specific Terms.
In the event of a conflict between two provisions that appear in different documents, the order of precedence will be the Requirements, the Restrictions, an active Order Form entered into by the parties, the Product and Service Specific Terms listed below (appended to these General Enterprise Terms) as applicable to Order Forms entered into between the parties, the General Enterprise Terms and the provisions in any other parts of the Documentation.
(a) Software. These terms apply to Carbonite’s software that is installed and operated on-site at locations that Customer controls (“Software”).
(b) Cloud Services. These terms apply to Carbonite’s cloud services (the “Cloud Services”).
(c) Hybrid Solution. These terms apply to Carbonite’s Products and Services that combine Cloud Services and On-Premise Software Products (together, the “Hybrid Solutions”).
(d) Hardware. These terms apply to the sale of hardware by Carbonite to Customer (“Hardware”).
(e) DRaaS Solution. These terms apply to Carbonite’s Disaster Recovery as-a-service solution (“DRaaS Solution”).
(f) Technical Support. These terms apply to Carbonite’s technical support services (“Technical Support Services”).
3. HIPAA Business Associate Agreement.
If Customer is subject to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), as a Covered Entity or Business Associate (as defined in HIPAA) and uses the Products and Services in a manner that causes Carbonite to create, receive, maintain, or transmit Protected Health Information on Customer’s behalf, please contact a sales representative or DataProtectionSales@carbonite.com, in order to use the Products and Services in a compliant manner. Unless otherwise agreed in writing, (i) Carbonite does not intend that Customer’s use of the Products and Services will create obligations to comply with HIPAA, (ii) Carbonite makes no representations that the Products and Services satisfy HIPAA requirements, and (iii) Customer agrees not to use the Products and Services in connection with any Protected Health Information (as defined in HIPAA).
4. Customer Account Registration.
Customers may be required to register an account with Carbonite (a “Customer Account”) in order to use certain Products and Services. During registration of a Customer Account, Customer agrees to provide accurate and complete information in response to Carbonite’s questions, and Customer further agrees to promptly update this information should it change. In connection with use of the Customer Account, a Customer may authorize itself and/or one or more of its employees, consultants, vendors or agents (collectively, “Authorized Users”) to use the Products and Services on Customer’s behalf. Each Authorized User will establish or be provided a username and password, and may also establish or be provided other access credentials, such as an encryption key (collectively, “Access Credentials”). Customer will, and will ensure that each Authorized User will, keep the Access Credentials confidential and ensure that they are not disclosed to any third party. Customer is responsible for the acts and omissions of its Authorized Users as if all such Authorized Users are Customer’s employees. Customer, and not Carbonite, is fully responsible for all activity that occurs under Customer’s Account using the Access Credentials, including any loss of Customer Content (as defined below). Customer acknowledges that its Authorized Users have full access to and management privileges of Customer Account(s), Customer Content and any personal data associated with Customer Account(s). Additional information regarding Authorized Users’ access and capabilities can be found here. Carbonite reserves the right to suspend or terminate a Customer Account, or the access of any Authorized User, for any reason, including if any registration information is inaccurate, untrue or incomplete, or if Customer or any of Customer’s Authorized Users fail to maintain the security of any Access Credentials. Customer agrees to, and will ensure that each Authorized user will, notify Carbonite at email@example.com immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.
5. Access Authorization.
Subject to the terms and conditions of this Agreement, Customer and its Authorized Users may access and use customer portals (the “Customer Portals”) that are made available to Customer in connection with the Products and Services, solely for internal business operations and solely in accordance with the Documentation. Customer’s authorization to use the Customer Portals is non-exclusive, non-transferable, non-sublicensable and terminable.
6. Customer Acknowledgements and Obligations.
Customer agrees to the following:
(b) Requirements and Environment. Carbonite offers many different Products and Services, with different Restrictions and Requirements, each of which are designed to address the needs of a broad range of customers. Customer acknowledges and agrees that: (i) Customer has assessed its data protection needs, network environment and the technical specifications and cost of each of the Products and Services; (ii) Customer is solely responsible for making the appropriate selection of the Products and Services even if a Carbonite representative has provided guidance to Customer regarding the Products or Services that Customer selects; (iii) Customer is solely responsible for ensuring that Customer complies with the applicable Requirements and Restrictions; and (iv) Customer is solely responsible for ensuring that Customer maintains and operates the information technology infrastructure from which the applicable Products and Services copies, maintains and transfers the Customer Content, including the databases, applications, files, software, computer, server, tablet, smartphone or any other device registered with Carbonite (including, to the extent applicable, hardware delivered to Customer as part of any Product or Service) (collectively, the “Customer Environment”).
(c) Customer Conduct. The Products and Services include functionality that enables Customer and its Authorized Users to copy, maintain, sync, transfer and upload text, graphics, photos, videos, presentations and other materials or information (“Customer Content”) pursuant to the terms of this Agreement, including the Requirements and Restrictions. Customer represents and warrants that its Customer Content and Customer’s, and its Authorized User’s, use of the Carbonite website, portals, Products and Services, and the technology related thereto, shall not (i) interfere with the proper working of the Products and Services or impose an unreasonably large load on Carbonite’s infrastructure; (ii) give rise to civil or criminal liability, e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (iii) violate or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses, harasses or stalks any other person; or (iv) initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.
(d) User Restrictions on Intellectual Property. Customer acknowledges and agrees that it shall not, and shall ensure its Authorized Users do not: (i) access or use the Products and Services in any manner or for any purpose other than expressly permitted by the Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the Products and Services; (iii) modify, disassemble, decompile or reverse engineer any part of the Products and Services or apply any other process or procedure to derive source code of any software included in the Products and Services (except solely to the extent permitted by applicable law); (iv) access or use the Products and Services in a way intended to avoid exceeding usage limits or quotas; (v) use the Products and Services in order to build a similar or competitive application or service; (vi) remove, tamper with or alter any disabling mechanism or circumvent any technical protection measures associated with the Products and Services, or otherwise use any tool to enable features or functionalities that are otherwise disabled in the Products and Services; (vii) resell or sublicense the Products and Services (except as solely to the extent permitted by applicable law); or (viii) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the Products and Services.
(e) Changes to Products and Services. Carbonite may periodically update or upgrade the Products and Services. Customer acknowledges and agrees that Carbonite may automatically download and install such updates and upgrades onto Customer’s device(s) or notify Customer of the need to update or upgrade the Products and Services and then Customer or its Authorized Users are solely responsible for applying patches that Carbonite makes available. Where applicable, Customer will grant Carbonite access to its device, which provides access tokens or keys, permitting licensed software to run on Customer’s device. Customer acknowledges and agrees that Carbonite may, at any time and without notice to Customer, discontinue, suspend or modify (i) the Products and Services, (ii) any functionality or feature of the Product and Services or (iii) the availability of the Products and Services on any particular device or hardware.
(f) Law Enforcement. If Carbonite reasonably suspects that Customer’s Account has been used for an unauthorized, illegal or criminal purpose, or law enforcement requests access to Customer’s Account or Customer Content via a validly issued subpoena, an investigative demand or warrant, Customer hereby gives Carbonite express authorization to share information about Customer, its Customer Account, Customer Content, and any of its transactions with law enforcement.
7. Fees and Payment.
(a) Fees. Customer agrees to pay all fixed and variable-usage fees (if any) (collectively, the “Fees”) listed on the applicable invoice or Order Form. Payment is due thirty (30) days from receipt of invoice. Unless otherwise indicated in the applicable Order Form, all Fees exclude sales, use, value-add and similar taxes (collectively, “Sales and Use Taxes”), import tariffs, and shipping and handling fees, which shall be the responsibility of the Customer. Customer shall indemnify, defend and hold Carbonite harmless for any liability or expense Carbonite may incur in connection with the failure to pay, or collection of, any Fees, Sales and Use Taxes, import tariffs or shipping and handling fees. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer shall pay the Fees without offset or deduction.
(b) Overage Fees. If Customer exceeds the data storage capacity limits indicated in the applicable Order Form, Customer agrees to pay the then-current overage fees applicable to the Products and Services pursuant to the Documentation and Carbonite reserves the right to suspend or throttle use of the Products and Services so Customer is using the Products and Services in accordance with the data storage capacity indicated in the applicable Order Form.
(c) Order Forms. Customer purchases a Product or Service by: (a) executing an Order Form or (b) purchasing a Product or Service through a third party that is authorized to resell the Carbonite Products and Services (each such entity, including managed service providers, an “Authorized Partner”). The Carbonite document, in either electronic or paper form, that establishes the Products and Services purchased, the Fees (if any) to be paid, any special Restrictions and other material business terms is called an “Order Form.” Carbonite reserves the right to terminate the delivery of any Products or Services in the event that any order between Customer and any Authorized Partner differs from the corresponding order received by Carbonite from the Authorized Partner. Customer acknowledges that any Authorized Partner is an independent contractor and not acting on behalf of Carbonite.
(d) Credit History. Acceptance of any Order Form by Carbonite and applicability of Carbonite’s standard payment terms are subject to Carbonite’s review of Customer’s credit history and rating. If a Customer’s credit history does not meet Carbonite’s acceptance criteria, Carbonite may (i) deny Customer’s Order Form or (ii) require Customer to make deposits and up-front payments until an acceptable credit history is established.
(e) Payment and Credit Cards. For Products and Services purchased directly from Carbonite’s website or portals (an “eCommerce Purchase”), Carbonite may utilize a third party to process credit card payments on Carbonite’s behalf (“Payment Provider”). For a list of the Payment Providers Carbonite currently uses, please write to firstname.lastname@example.org. Customer agrees to provide Carbonite’s Payment Provider with a valid credit card (Visa, MasterCard or any other branded credit card accepted by Carbonite) as a condition to such transactions. Payment Provider’s policies govern the processing of Customer’s payment, and Customer must refer to those policies and not this Agreement to determine Customer rights and liabilities. By providing Customer’s credit card number and associated payment information, Customer authorizes Carbonite, through Carbonite’s Payment Provider, to immediately charge the Fees to the credit card that is associated with the Customer (the “Card-on-File”) for the Initial Term and any Renewal Term.
(f) Subscription Renewals.
(i) Charges for Auto-Renewing Subscription Services. If Customer purchases Products and Services sold on a subscription basis (a “Subscription Service”), Customer shall be billed renewal Fees on the first day of the Renewal Term and such Fees may be different than the initial subscription Fee. If Customer cancels a Subscription Service (as provided in Section 8, below), Customer will continue to have access to that Subscription Service through the end of the then-current Subscription Term, but Customer will not be entitled to a refund or credit for any Fees already due or paid. Carbonite reserves the right to increase its Fees annually at a rate not to exceed three percent (3%) to account for CPI. Additionally, Carbonite may increase its Fees at a greater rate or frequency upon thirty (30) days’ advance notice. Customer’s continued use of Subscription Services after any change to Carbonite’s Fees will constitute Customer’s agreement to such changes.
(ii) Maintenance of Card-On-File. If Customer makes an eCommerce Purchase, Customer agrees to notify Carbonite of any changes required to keep Customer’s Card-on-File information current and accurate. Customer’s failure to maintain its Card-On-File may result in an interruption of Customer’s use of the Products and Services.
8. Term and Termination.
(a) Term. The initial length of time that Customer is authorized to use any Product or Service will be as set forth in the applicable Order Form (the “Initial Term”). The Initial Term will automatically renew (each, a “Renewal Term”) unless either party provides the other party notice of its intent to terminate the Renewal Term prior to, or on the commencement date of, the Renewal Term. Collectively, the Initial Term and any Renewal Term(s) are referred to as the “Term”. If no Renewal Term is identified in the Order Form, the Renewal Term will be the same length of time as the Initial Term. Notice of any termination under Section 8(a), 8(b) or 8(c) of these General Enterprise Terms may be given by emailing email@example.com, through the applicable Product or Service (if available), or Customer Portals.
(b) Termination for Material Breach. Carbonite may terminate any Order Form and this Agreement at its discretion, effective immediately upon written notice, if Customer materially breaches any provision of this Agreement as it relates to the applicable Order Form and this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
(c) Termination Upon Bankruptcy or Insolvency. Carbonite may, at its option, terminate any Order Form and this Agreement immediately upon written notice to Customer, in the event: (i) Customer becomes insolvent or unable to pay its debts when due; (ii) Customer files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against Customer, such petition is not removed within ninety (90) days after such filing; (iii) Customer discontinues its business; or (iv) a receiver is appointed or there is an assignment for the benefit of Customer’s creditors.
(d) Suspension. Carbonite may, at any time and in its sole discretion, suspend access to any Product or Service for one or all of Customer’s Authorized Users, including but not limited to, the following reasons: (i) a threat to the security or integrity of the Products and Services; (ii) Customer has materially breached this Agreement or (iii) any amount due under this Agreement is not received by Carbonite within fifteen (15) days after it was due.
(e) Effects of Termination. Upon termination or expiration of an Order Form or this Agreement for any reason: (i) any amounts owed to Carbonite before such termination or expiration will become immediately due and payable; (ii) all license and access rights granted will immediately cease; (iii) access to Customer Content will immediately cease; (iv) all Customer Content will be irretrievably deleted; and (v) if Customer’s subscription included Appliance Hardware (as defined in the Hybrid Terms), Customer will return the Appliance Hardware in accordance with the Hybrid Terms. Those provisions of this Agreement that by their nature are intended to survive termination or expiration of an Order Form or this Agreement shall so survive.
Carbonite has implemented administrative, physical and technical safeguards designed to secure Customer Content from accidental loss and unauthorized access, use, alteration or disclosure. However, Carbonite cannot guarantee that unauthorized third parties will never be able to defeat Carbonite’s safeguards or use the Customer Account and Customer Content for improper purposes. Customer provides its Customer Account details and Customer Content to Carbonite at its own risk. Customer is solely responsible for safeguarding, and ensuring that its Authorized Users safeguard, the Access Credentials.
10. Proprietary Rights.
(a) Reservation of Rights. As between the parties, Customer acknowledges and agrees that the software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Products and Services (“Carbonite Technology”) and the content made available or displayed by Carbonite through the Products and Services, including all text, graphics, images and the look and feel of such Products and Services (collectively “Carbonite Content”) are owned by or licensed to Carbonite, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to the Carbonite Technology or the Carbonite Content to Customer, either expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or granted by Carbonite to Customer in this Agreement or any of the Documentation, Carbonite reserves all right, title and interest in and to Carbonite Technology and Carbonite Content. No right or license is granted by Carbonite to Customer or its Authorized Users to use any Carbonite trademark, trade name, service mark, product name or other source designator.
(b) Professional Services; Managed Services. Pursuant to a written statement of work, Customer may purchase professional services or managed services from Carbonite. All changes, upgrades, updates, improvements or other modifications to Carbonite’s Technology and Carbonite’s Content as may be created in the course of any such statement of work shall be owned exclusively by Carbonite. All changes, upgrades, updates, improvements, or other modifications to Customer Content or Customer’s proprietary technology as may be created in the course of any such statement of work shall be owned exclusively by Customer.
(c) Continuous Development. Carbonite may continually develop and provide ongoing innovation to the Products and Services in the form of new features, functionality, and efficiencies. In the event Carbonite adds new features or functionality (collectively, “Functionality”) to a particular Product or Service, Carbonite may offer the Functionality to Customer at no additional charge or, if Carbonite generally charges customers for such functionality, Carbonite may condition Customer’s use of the Functionality on the payment of additional Fees.
(d) Feedback. In the course of using the Products and Services, Customer or Authorized Users may provide Carbonite reports, comments, suggestions or ideas relating the Products and Services (“Feedback”). Carbonite shall have no obligation to incorporate Feedback into any Product or Service, and Customer shall have no obligation to provide Feedback. Carbonite shall have no obligation to treat such Feedback as Customer’s confidential or trade secret information. Customer, on behalf of itself and its successors in interest, grants Carbonite a world-wide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to use, profit from, disclose, publish, or otherwise exploit any Feedback. Without limiting the generality of the foregoing, Customer agrees that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to any aspects of the Products and Services, even if such Feedback leads Company to create new Products or Services. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement or the Documents shall apply to Feedback.
(e) Open Source Software. The Products and Services may contain redistributables, agents or other code resident on Customer’s devices that includes open source software. Some of the provisions of the licenses granted to Carbonite may apply to Customer’s use of such open source software. A list of such open source software and the provisions applicable to Customer for a given ordered Product and Service can be found here or in the notices or acknowledgment files.
Customer acknowledges and agrees Carbonite shall have the right to audit Customer records upon reasonable written notice in order to ensure compliance with the terms of this Agreement. Audits may be conducted by Carbonite personnel or by an independent third-party auditor appointed by Carbonite. Customer shall grant Carbonite and/or an independent third-party auditor appointed by Carbonite reasonable access to its personnel, records and facilities during normal business hours for such purpose. In the event that results of the audit indicate that Customer has underpaid any Fees, Carbonite will deliver to Customer an invoice and Customer agrees to pay the applicable amount within fifteen (15) days of receipt of the applicable invoice. Carbonite will pay for the cost of the audit unless, as a result of the audit the discrepancy between the amount owed and the amount previously paid is greater than five percent (5%), in which case Customer will reimburse Carbonite for the reasonable costs of the audit.
12. General Disclaimers.
THE USE OF “CARBONITE” IN SECTIONS 9, 11, 12, 13, AND 14 MEANS CARBONITE, ITS AFFILIATES, PARTNERS, PROCESSORS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES). THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, CARBONITE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. CARBONITE DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE PRODUCTS AND SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE PRODUCTS AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE PRODUCTS AND SERVICES GENERALLY WILL BE SECURE. CARBONITE DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES: (i) WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THOSE OF CUSTOMER’S AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY CUSTOMER OR CUSTOMER’S AUTHORIZED USERS.
13. Specific Disclaimers.
(a) CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES.
(b) CUSTOMER ASSUMES ALL RESPONSIBILITY AND LIABILITY FOR THE SECURITY OF CUSTOMER'S CONTENT IF CUSTOMER DISABLES ANY ENCRYPTION FEATURES WITHIN THE PRODUCTS AND SERVICES.
(c) CUSTOMER’S ACCESS TO AND USE OF THE PRODUCTS AND SERVICES ARE AT ITS SOLE DISCRETION AND RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES, AND THE LOSS OR DAMAGE OF CUSTOMER’S CUSTOMER CONTENT.
(d) DEPENDING ON THE PRODUCTS AND SERVICES CUSTOMER CHOOSES TO UTILIZE, CUSTOMER’S CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) CUSTOMER’S CONTENT;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE PRODUCTS AND SERVICES DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, CUSTOMER DOES NOT MANUALLY SELECT FOR BACKUP OR CUSTOMER DESELECTS CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) CUSTOMER DELETES CERTAIN CUSTOMER CONTENT FROM CUSTOMER’S DEVICE AND DOES NOT RESTORE IT AFTER DELETION PURSUANT TO CARBONITE’S OR CUSTOMER’S OWN DATA RETENTION POLICIES, OR CUSTOMER DELETES A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
(iv) CUSTOMER MOVES CUSTOMER CONTENT TO A LOCATION ON CUSTOMER’S DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR CUSTOMER UPGRADES CUSTOMER’S OPERATING SYSTEM RESULTING IN CHANGES TO CUSTOMER’S FILE MAPPING;
(v) CUSTOMER’S CONTENT IS CORRUPTED;
(vi) CUSTOMER’S DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) ANY HARDWARE PROVIDED TO CUSTOMER AS PART OF THE PRODUCTS AND SERVICES IS UNABLE TO CONNECT TO CUSTOMER’S DEVICES AND CUSTOMER DOES NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
(viii) CUSTOMER’S DEVICE OR ANY HARDWARE IS UNABLE TO MAKE A CONNECTION WITH CARBONITE’S SERVERS OR NETWORK;
(ix) CUSTOMER FAILS TO FOLLOW CARBONITE’S TECHNICAL REQUIREMENTS AND THE DOCUMENTATION FOR UTILIZING THE PRODUCTS AND SERVICES, INCLUDING UPGRADING THE PRODUCTS AND SERVICES OR FAILING TO PERIODICALLY TEST CUSTOMER’S BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
(x) CUSTOMER TERMINATES OR FAILS TO RENEW CUSTOMER’S LICENSE OR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR CUSTOMER’S ACCESS TO THE PRODUCTS AND SERVICES HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.
(e) THE PRODUCTS AND SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT CARBONITE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS; (iii) CUSTOMER IS SOLELY RESPONSIBLE FOR MAINTAINING ITS OWN INTERNET AND DATA CONNECTIONS; AND (iv) COMPONENTS OF THE PRODUCTS AND SERVICES THAT ARE ACCESSED OR USED THROUGH INTERNET CONNECTIONS MAY BE SUBJECT TO CUSTOMER’S INTERNET SERVICE PROVIDER’S FEES AND DOWNTIME. CUSTOMER ACKNOWLEDGES AND AGREES CARBONITE IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
(f) IF APPLICABLE, CUSTOMER ACKNOWLEDGES AND AGREES TO CARBONITE’S USE OF CYBERSOURCE, A SUBSIDIARY OF VISA, AND LITLE & CO., A SUBSIDIARY OF VANTIV, TO PROCESS AND STORE CUSTOMER’S CREDIT CARD INFORMATION. IN THE EVENT OF A SECURITY BREACH INVOLVING CUSTOMER’S CREDIT CARD INFORMATION, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S SOLE RECOURSE IS AGAINST THESE THIRD-PARTY VENDORS WHO PROCESS AND STORE CUSTOMER’S CREDIT CARD INFORMATION, AND NOT CARBONITE.
(g) CUSTOMER IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT CARBONITE SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM CUSTOMER’S FAILURE TO MAINTAIN ACCURATE ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE PRODUCTS AND SERVICES.
(h) CUSTOMER ACKNOWLEDGES AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CARBONITE OR ANY CARBONITE EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CARBONITE’S OBLIGATIONS HEREUNDER.
14. Disclaimers of and Limitations on Certain Remedies.
(a) No Consequential and Similar Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CARBONITE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE PRODUCTS AND SERVICES, EVEN IF CARBONITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE).
(b) No Procurement of Substitute Products and Services or Customer Content. IN NO EVENT WILL CARBONITE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT. UNDER NO CIRCUMSTANCES WILL CARBONITE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PRODUCTS AND SERVICES, CUSTOMER’S ACCOUNT OR THE CUSTOMER CONTENT.
(c) Limitation on Aggregated Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF CARBONITE FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY CUSTOMER TO CARBONITE IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00). IF THE PRODUCTS AND SERVICES ARE PROVIDED TO CUSTOMER WITHOUT CHARGE, THEN CARBONITE WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.
(d) CUSTOMER EXPRESSLY RECOGNIZES AND ACKNOWLEDGES THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE PRODUCTS AND SERVICES AND CARBONITE’S WILLINGNESS TO PROVIDE CUSTOMER THE PRODUCTS AND SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO CUSTOMER.
(e) THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
Customer will indemnify, defend and hold Carbonite (and its processors, respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of Customer’s representations, warranties or obligations set forth in this Agreement; (b) Customer’s wrongful or improper use of the Products and Services; (c) Customer’s violation of any third party’s rights, including without limitation, any right of privacy, publicity rights or intellectual property rights; (d) Customer’s violation of any law, rule or regulation of the United States or any other country; (e) any other party’s access and/or use of the Products or Services using Customer’s Access Credentials or the Access Credentials of any of Customer’s Authorized Users; and (f) use of Customer Content. Carbonite reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify Carbonite and Customer agrees to cooperate with Carbonite’s defense of these claims. Customer agrees not to settle any matter without Carbonite’s prior written consent. Carbonite will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
16. Export Controls and Trade Sanctions Compliance.
Customer’s use of the Products and Services is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations, including without limitation, the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and U.S. trade sanctions, administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Customer will not export, re-export, download or otherwise transmit the Products and Services, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, Customer acknowledges that the Products and Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (including without limitation, the Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, and Foreign Sanctions Evaders List, administered by OFAC, and the Entity List, Denied Persons List, and Unverified List administered by BIS) (collectively, “Restricted Party Lists”). By purchasing a Product or Service, Customer represents and warrants that it is not located in any Sanctioned Country or on any Restricted Party List. Customer acknowledges that the Products and Services may not be available in all jurisdictions and that Customer is solely responsible for complying with applicable Export Control Laws related to the manner in which Customer chooses to use the Products and Services, including Customer’s transfer and processing of the Customer Content and the region in which any of the foregoing occur.
17. Dispute Resolution.
Please read the following arbitration agreement in this Section 17 carefully (“Arbitration Agreement”). It requires Customer to arbitrate disputes with Carbonite and limits the manner in which Customer can seek relief from Carbonite. Please contact firstname.lastname@example.org within thirty (30) days of acceptance of the Agreement to opt-out of this Arbitration Agreement. If Customer is a user of Carbonite’s Products and Services and a resident outside of the United States, country specific provisions can be found here: Country Specific Terms.
(a) Applicability of Arbitration Agreement, Rules and Forum. Customer agrees that any dispute or claim relating in any way to this Agreement, including but not limited to, arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach of this Agreement, the Customer’s access or use of the Products and Services, or to any aspect of Customer’s relationship with Carbonite, will be resolved by binding arbitration, rather than in court. This Arbitration Agreement will apply to all claims that arose or were asserted before the effective date of this Agreement. Such disputes and claims 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. Judgement upon the arbitral award may be entered by any court having jurisdiction.
(b) Waiver of Jury Trial. EXCEPT FOR SMALL CLAIMS ACTIONS, CUSTOMER AND CARBONITE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Customer and Carbonite are instead electing that all claims and disputes will be resolved by final, binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration and court review of an arbitration award is subject to very limited review.
(c) Waiver of Class or Consolidated Actions. IF CUSTOMER AGREES TO THIS AGREEMENT AND/OR USES THE PRODUCTS AND SERVICES, CUSTOMER IS AGREEING IN ADVANCE THAT CUSTOMER WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CARBONITE ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON CUSTOMER’S BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, CUSTOMER MAY BRING CUSTOMER’S CLAIMS AGAINST CARBONITE IN AN INDIVIDUAL ARBITRATION PROCEEDING. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS BEEN ADVISED THAT CUSTOMER MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT PRIOR TO USING THE PRODUCTS AND SERVICES, INCLUDING THIS ARBITRATION AGREEMENT. If a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to Customer’s and Carbonite’s rights to appeal the court’s decision. All other claims will be arbitrated.
(d) Severability. Except as otherwise provided under the terms and conditions of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
(e) Survival of Agreement.This Arbitration Agreement will survive the termination of Customer’s relationship with Carbonite.
(f) Modification. Notwithstanding any provision in this Agreement to the contrary, it is agreed that if Carbonite makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) already in progress or that Customer has already provided written notice to Carbonite.
18. Governing Law.
These General Enterprise Terms and any dispute arising hereunder will be governed by the laws of the Commonwealth of Massachusetts and/or applicable federal law (including the Federal Arbitration Act) without regard to its choice of law or conflicts of law principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both Customer and Carbonite agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Boston, Massachusetts.
19. Governing Language.
Customer acknowledges that any translation of the English language version of this Agreement or any portion thereof is provided for convenience only, and that the English language version will take precedence over the translation in the event of any conflicts arising from translation.
20. Electronic Communications.
By using the Products and Services, Customer acknowledges that Carbonite shall communicate with Customer electronically using the email address in the Customer Account. It is the Customer’s responsibility to keep its email address current for notice purposes. For contractual purposes, Customer (a) consents to receive communications from Carbonite in an electronic form and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Carbonite provides to Customer electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. Customer agrees that all disclosures, notices and communications are considered received by Customer within twenty-four (24) hours of the time posted to Carbonite’s website, or within twenty-four (24) hours of the time emailed to Customer.
21. Contacting Carbonite.
To contact Carbonite regarding this Agreement (i) email email@example.com or (ii) write to 2 Avenue de Lafayette, Boston, MA 02111, Attn: Contracts.
22. Changes in this Agreement.
Carbonite may amend the General Enterprise Terms, any Product and Service Specific Terms, or Carbonite’s Documentation, at any time in its sole discretion, by posting the revised version on Carbonite’s website and/or communicating it to Customer (each, a “Revised Version”). The Revised Version will be effective thirty (30) days from the time it is posted. Customer’s continued use of the Products and Services after the posting of a Revised Version constitutes Customer’s acceptance of such Revised Version.
This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by Customer and any attempted transfer or assignment will be null and void. Carbonite may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all, substantially all or a portion of Carbonite’s assets, stock or business. If another entity merges with or acquires Carbonite, or all, substantially all or a portion of Carbonite’s assets, stock or business Customer agrees that Customer’s encrypted stored data and information that Carbonite has collected from Customer, including personally identifiable information, may, and Customer consents to, the secure transfer of such information to such successor or assignee.
24. Force Majeure.
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
25. Government Use.
The Products and 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.
26. Other Provisions.
These General Enterprise Terms, the Order Form, the Product and Service Specific Terms and the Documentation are a complete statement of the agreement between Customer and Carbonite regarding the Products and Services and the matters covered in this Agreement. Customer acknowledges and agrees there are no third-party beneficiaries to this Agreement. If any provision of the Agreement is invalid or unenforceable under applicable law, then it will be changed, interpreted or severed, as appropriate to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that Carbonite may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Enterprise Terms will be deemed a further or continuing waiver of such term or any other term.