Datto Secure Edge Terms of Use for its Soft Client

Datto Secure Edge services (“Secure Edge”) is offered by Datto, Inc., with offices at 101 Merritt 7, Norwalk, CT 06851, USA (“Datto,” “us,” or “we”). The Secure Edge Soft Client (“Software”), to which these Terms of Use (the “Terms”) apply, may be installed and used for the sole purpose of connecting devices to the Datto Secure Edge Service where the applicable subscription fee has been paid (“Permitted Use”).

BY ACCESSING, USING, INSTALLING OR DOWNLOADING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU WILL USE THE SOFTWARE ONLY FOR THE PERMITTED USE, AND THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, WILL COMPLY WITH THESE TERMS, AND AGREE TO BE BOUND BY THESE TERMS. YOU FURTHER AGREE TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS WHEN USING THE SOFTWARE. YOU ACKNOWLEDGE THAT THESE TERMS CONSTITUTE A BINDING AND ENFORCEABLE LEGAL ELECTRONIC CONTRACT BETWEEN YOU, THE BUSINESS ENTITY THAT YOU REPRESENT, AND DATTO. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, INSTALL, DOWNLOAD OR USE THE SOFTWARE.

1. Contracting Party

  1. Explanation of Relationships. Datto does not provide Secure Edge directly to end-users (“Users”). Instead, Secure Edge services are provided by Datto through a reseller or managed service provider (“Administrator”). Typically, the Administrator uses and manages Secure Edge on behalf of its clients (“Clients”) so that Users may securely access the networks of the Clients. You are one of those Users. These Terms are an agreement between Datto and you as a User, and also as a representative of a Client (“you”).

  2. Role of the Administrator. Datto will interact with the Administrator(s) to operate and manage use of Secure Edge and the Software. You are not a third-party beneficiary of any agreement between Datto and an Administrator. An Administrator is not an agent of Datto and is not authorized to make representations or warranties on behalf of Datto. You or the Client are responsible for instructing and authorizing the Administrator with respect to use of Secure Edge including configurations, settings, management, and transition of Secure Edge to a different Administrator. You expressly agree that Datto may rely on the instructions and authorization of the Administrator with respect to use and support of Secure Edge and the Software. If you require support for Secure Edge or the Software, you must contact the Administrator, and not Datto.

2. License to Software

Conditioned upon your compliance with these Terms, Datto hereby grants you a non-exclusive, non-transferrable, non-sublicensable, limited and revocable license to use the Software and any related materials or code (“Software”) for the Permitted Use (the “License”). Datto reserves all right, title and interest not expressly granted under the License, to the fullest extent possible under applicable laws. You may not sublicense, assign, or transfer the License, and any attempt to do so is hereby void. You acknowledge that Datto and its licensors own all intellectual property rights in Secure Edge and the Software.

3. Your Data and Data Security

  1. Network Information. To provide you access to Secure Edge, Datto requires use of your email address, IP address and Mac address. In addition, depending on the security settings and configuration of Secure Edge, Datto may obtain information regarding the ways in which you use the internet, such as certain websites you may visit. All of this information is referred to herein as “Network Information”). Datto will protect your Network Information as described in Datto’s Privacy Policy.

  2. Datto’s Security. Datto has implemented and maintains physical, technical and administrative measures designed to help secure the Secure Edge Services, your Network Information, as well as other information under Datto’s control against accidental or unlawful loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the reasonable measures employed, Secure Edge and your Network Information are not guaranteed against all security threats or other vulnerabilities.

  3. Administrator’s Role in Security. You acknowledge and agree that the Administrator you authorize to manage use of the Product on your behalf has access to and manages your Network Information. Datto is not responsible for any physical, administrative, or technical controls related to Secure Edge that are not under the exclusive control of Datto, including but not limited to authorization information, such as passwords or other access credentials (“Account Credentials”), your LAN or internet connectivity. You and your Administrator are responsible for the safekeeping of Account Credentials and other account information. You are responsible for activities that are taken through your Secure Edge account.

  4. No Storage Services. Datto does not store data within or through Datto Secure Edge. However, Secure Edge is intended to work seamlessly with other Datto products and services that do store your data and other content. Should you wish to have data or content stored for backup purposes, please secure a subscription to other products or services (such as, for example, Datto SaaS Protection or Datto BCDR).

  5. Use of Aggregate Data. Notwithstanding anything else in these Terms or otherwise, Datto may evaluate and process your Network Information in an aggregate and anonymous manner such that that you are no longer identified or identifiable, and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Datto may use, process and share such Aggregate Data with third parties to improve products and services, develop new products or services, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Datto’s business. Datto retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information.

4. Updates and Support

From time to time, Datto may, at its discretion, modify Secure Edge or the Software such as, for example, by adding or removing certain functions. Datto may, in its discretion, provide technical support, maintenance upgrades and updates for the Software and Secure Edge (“Updates”). Such Updates may be made by automatic download and installation. You hereby agree to receive such Updates as part of your use of the Software and Secure Edge services. You also agree that Datto may, and hereby authorize Datto, to interact remotely with any devices or other endpoints deployed on Secure Edge to test, troubleshoot, update, analyze use of or modify Secure Edge and the environment in which it operates. Datto also reserves the right to replace or discontinue Secure Edge, the Software or enhancements at any time.

5. Your Responsibilities

  1. Compliance with the Law. You hereby represent and warrant that you will use Secure Edge and the Software in full compliance with all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”). You shall not agree to, nor shall you authorize or encourage any third-party to prevent others from using the Secure Edge; (ii) use Secure Edge or the Software for any fraudulent or inappropriate or illegal purpose; or (iii) act in any way that violates these Terms. In Datto’s sole discretion, Datto may cooperate with public or private authorities as provided by Applicable Law, and share Network Information pursuant to the Datto Privacy Policy.

  2. Prohibited Uses of Secure Edge and the Software. You undertake and warrant that you will not, and will not allow a third party, to do any of the following in relation to Secure Edge or the Software: (i) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any portion of Secure Edge or the Software (including without limitation any related malware signatures and malware detection routines), or (ii) change, modify or otherwise alter Secure Edge or the Software (including, without limitation, any related malware signatures and malware detection routines); (iii) publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense Secure Edge or the Software; (iv) use Secure Edge or the Software to provide or build a product or service that competes with Datto Secure Edge; (v) use or attempt to use Secure Edge or the Software to upload, store or transmit to third parties any materials that are unlawful, harmful, threatening, abusive, defamatory or otherwise objectionable; (vi) act in any way that damages, disables or impairs the operation of Secure Edge or the Software; (vii) gain or attempt to gain unauthorized access to Secure Edge or to networks connected to it, or to content stored or delivered through it, by any means, including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures.

6. LIMIT OF WARRANTIES AND LIABILITY

UNLESS OTHERWISE SPECIFICALLY WARRANTED BY DATTO IN WRITING, SECURE EDGE AND THE SOFTWARE ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATTO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. DATTO DOES NOT WARRANT THAT SECURE EDGE OR SOFTWARE WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THEIR OPERATION WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

SECURE EDGE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATTO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

IN NO EVENT WILL DATTO OR ANY DATTO LICENSOR OR SUPPLIER BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATTO’S LIABILITY IS LIMITED TO THE PRICE PAID BY YOU TO LICENSE SECURE EDGE AND THE SOFTWARE. IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATTO, ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL DATTO WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF DATTO’S OBLIGATIONS HEREUNDER.

7. Indemnification

You will defend, indemnify and hold harmless Datto from and against any loss, cost, liability or damage, including attorneys’ fees, for which Datto becomes liable arising from any claim relating to your use of Secure Edge or the Software, including if: a) you infringe or misappropriate the intellectual property rights or other rights of a third party; b) violate any Applicable Law; or c) otherwise are in violation of these Terms or the Secure Edge Terms of Use.

8. Termination

  1. Termination of Subscription to Secure Edge. If the subscription to Datto Secure Edge for which the Software is used is terminated, there will be no valid Permitted Use, and your License to the Software is immediately terminated. Upon termination of the Secure Edge subscription, you must cease use of the Software.

  2. Termination or Suspension for Cause. If Datto reasonably believes that your use of the Software or Secure Edge violates these Terms, disrupts or threatens the operation or security of Secure Edge or any computer, network or system, or otherwise may subject Datto or a third-party to liability or damage, Datto reserves the right to refuse or disable access to the Secure Edge, and/or the Software. Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Datto may restrict access to the Secure Edge or the Software without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request, or in cases of emergency. If Datto takes such action without prior notice, Datto will provide notice to the Administrator after taking action, unless notice is prohibited by law.

9. Modifications

Datto reserves the right at any time to modify these Terms, the Software or Secure Edge. Datto will make reasonable efforts to notify you of material modifications (likely by email) and your continued use of the Software or Secure Edge after an modification will indicate your acceptance of the modifications. If you do not agree to the modifications, you must terminate your use of the Software immediately. Modifications of the Terms are effective immediately upon posting unless otherwise specified by Datto.

10. Governing Law.

All disputes arising under these Terms or related to your use of the Secure Edge or the Software (“Disputes”) will be construed and enforced in accordance with the laws of the state of Connecticut, without reference to conflicts of law principles. The UN Convention on Contracts for the International Sale of Goods shall not apply to these Terms or any Dispute. Any Dispute shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”). Notwithstanding the foregoing, claims involving the following are not subject to mandatory arbitration and may be brought in any court of appropriate jurisdiction: (i) alleged infringement or misappropriation of the other party’s intellectual property; (ii) claims involving a party’s right to indemnification; and (iii) claims for temporary or permanent injunctive relief.

11. Miscellaneous.

If any provision herein is deemed invalid, illegal or unenforceable, the enforcement of the remaining provisions will not be affected. All agreements, including these Terms, notices, disclosures and other communications, that are sent electronically shall satisfy all legal requirements of “in writing,” and you hereby consent to such transmissions. Any delay in or failure of performance of either party will not constitute a default under these Terms, or give rise to a claim for damages, to the extent such delay or failure is caused by an event beyond the party’s control. All waivers must be signed and in writing to be effective. The failure to enforce, or the waiver, by either party of one default or breach will not be considered a waiver of any subsequent default or breach. These Terms constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous written and oral agreements.