These Hybrid Specific Terms (the “Hybrid Terms”) govern Customer’s use of Carbonite’s solution that combines cloud-based data protection with an onsite appliance that is provided by Carbonite. By purchasing or using the Hybrid Solution, Customer agrees to be bound by the General Enterprise Terms, these Hybrid Terms and the Order Form. Capitalized terms not defined in these Hybrid Terms will have the meaning given to them in the General Enterprise Terms.
1. ADDITIONAL DEFINED TERMS
“Appliance Hardware” means the leased hardware components of the on-site appliance.
“Appliance Software” means the Carbonite software that is pre-loaded onto the onsite appliance.
“Client Software” means the Carbonite proprietary software agents, clients and plug-ins that are installed on specific devices in order to extract Customer Content from such devices.
“Hybrid Solution” is comprised of three components: (a) the Cloud Services, (b) the Software Components and (c) the Appliance Hardware.
“License Period” means the term set forth in an Order Form.
“License Location” means the location where Customer is authorized by Carbonite to use the Hybrid Solution.
“Software Components” means the Client Software and the Appliance Software.
2. LICENSE GRANTS
Except for the limited rights granted herein, Carbonite and its licensors retain all right, title, and interest in and to the Software Components and the Appliance Hardware and all intellectual property rights therein.
a. Cloud Services. The cloud back-up component of the Hybrid Solution is licensed pursuant to the Cloud Service Terms.
b. Software Components. Subject to the terms and conditions of this Agreement and the applicable Order Form, for the term of the License Period, Carbonite grants to Customer a non-exclusive, non-transferable, revocable, fee-bearing, limited license (without the right to sublicense) to install, execute and use the Software Components solely: (i) in object code format, (ii) in accordance with the applicable Documentation, (iii) subject to all other Requirements and Restrictions, and (iv) for Customer’s internal business purposes in the Licensed Location, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service. The Appliance Software may be used and executed solely on the Appliance Hardware, as installed thereon.
c. Appliance Hardware. Appliance Hardware is leased to Customer as part of the Hybrid Solution. Appliance Hardware is not sold to Customer and no transfer of title in the Appliance Hardware is effectuated in connection with the Hybrid Solution. Customer acknowledges and agrees that the Appliance Hardware shall not be deemed to be a fixture of any part of the Customer premises. Subject to the terms of this Agreement and the applicable Order Form, for the term of the License Period, Carbonite grants to Customer a non-exclusive, non-transferable, revocable, fee-bearing, limited lease (without the right to sublease) to use the Appliance Hardware solely: (a) as part of the Hybrid Solution; (b) to execute the Appliance Software, (c) subject to all other Requirements and Restrictions, and (d) for Customer’s internal business purposes in the Licensed Location, with no right to otherwise transfer the Appliance Hardware to any third party, or otherwise grant access to third parties to use the Appliance Hardware for any purpose, including but not limited to use of the Appliance Hardware to provide a hosted service to third parties. No other use of the Appliance Hardware is permitted. The Appliance Hardware may not be used separate and apart from the Appliance Software. Customer may not sell, lease, abandon, or give away the Appliance Hardware or permit any unauthorized third party to access or use the Appliance Hardware.
3. CUSTOMER RESPONSIBILITIES FOR MAINTENANCE OF APPLIANCE
Customer agrees that it will: (A) store and operate the Appliance Hardware in a manner and under the environmental conditions specified in the Documentation so that the Appliance Hardware remains in good operating condition and (B) not allow anyone other than Carbonite or a Carbonite authorized agent to service the Software Components or Appliance Hardware. In the event the Appliance Hardware requires repair or replacement, Carbonite will, in its sole discretion, repair or replace the Appliance Hardware at Carbonite’s expense, provided, however, that if the Appliance Hardware is in need of repair or replacement as a result of Customer’s actions, omissions, or violation of these Hybrid Terms, Customer authorizes Carbonite to invoice Customer a non-refundable fee equal to the costs incurred by Carbonite to repair the Appliance Hardware and all shipping and handling fees associated with the repair. Customer agrees to pay any such invoice within thirty (30) days of Customer’s receipt of such invoice.
The Appliance Hardware is not licensed for use in life support systems, human implantation, nuclear facilities or any other application where Appliance Hardware failure could lead to loss of life or property damage. If Customer uses the Hardware for use in such applications or fails to comply with the manufacturer's specifications, Customer acknowledges that (i) any such use or non-compliance is at Customer's sole risk, (ii) Carbonite and its licensors and suppliers are not liable, in whole or in part, for any claim or damage arising from such use, and (iii) Customer shall indemnify, defend and hold Carbonite, its licensors and suppliers harmless from any claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use, including if applicable (x) Carbonite's compliance with Customer's designs, specifications, or instructions, (y) modification of any Appliance Hardware by anyone other than Carbonite, or (z) use of the Appliance Hardware in combination with other products or in violation of this clause.
5. RETURN OF APPLIANCE HARDWARE
Customer agrees to promptly return the Appliance Hardware in an undamaged condition within ten (10) calendar days of non-renewal, cancellation, or expiration of the Hybrid Solution or issuance of replacement Appliance Hardware to Customer (the “Return Period”). Customer is solely responsible for deleting any Customer Content stored on any Appliance Hardware prior to returning the Appliance Hardware to Carbonite. Customer acknowledges and agrees that Carbonite will not be responsible for any use or disclosure of any stored Customer Content that remains on any returned Appliance Hardware. Customer will be responsible for the (i) cost of shipping and handling in connection with the return of the Appliance Hardware to Carbonite and (ii) risk of loss associated with the Appliance Hardware until it arrives at Carbonite’s warehouse. Carbonite reserves the right to invoice Customer for the replacement cost of the Appliance Hardware if Carbonite does not receive the Appliance Hardware by the end of the Return Period. All such payments are due within thirty (30) days of the invoice date.