Datto Windows Backup Agent Software License Agreement

This Software License Agreement (“License”) governs your use of Datto backup agent software, including all updates, upgrades and documentation (collectively, the “Agent Software”). This License is a binding, legal contract between Datto, Inc. or a Datto, Inc. affiliate based on your location (“Datto”, “we” or “us”) and you.

The Agent Software is installed on a Machine to be backed up using a Datto Product enrolled in a valid Service Subscription. Use of the Agent Software is subject to a) this License; and b) the Product Terms of Use for the Datto Product, which, as applicable, are hereby incorporated by reference. Any capitalized terms not defined at the end of this License will have the same meaning as in the Product Terms of Use.

By clicking “I AGREE” below, or by downloading, installing, accessing, or using the Agent Software, or any portion thereof, you are agreeing to and will be bound by the terms of this License and the applicable Product Terms of Use. If you agree on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to the terms of this License and your agreement will be treated as the agreement of the business or organization. If you agree on behalf of another party, you hereby represent and warrant that you are authorized as that party’s agent to do so. If you do not agree to the terms of this License, you may not install, access or use the Agent Software.

Ownership and Limited Rights. The Agent Software, including all Intellectual Property Rights therein, is owned by Datto or its licensors and is protected by copyright, patent, trade secret and/or other intellectual property laws. The Agent Software is licensed, not sold. Except for the limited rights granted in this License, Datto or its licensors retains all right, title, interest and Intellectual Property Rights in the Agent Software. Any Feedback provided by you regarding the Agent Software may be used by us without restriction.

Open Source. Any part of the Agent Software that may be subject to an open source license is not subject to the terms of this License, but rather to the terms of the applicable license that applies to such open source component.

License Grant. Subject to the terms and conditions of this License, the applicable Product Terms of Use for the Datto Product and the receipt by Datto of all fees applicable to the Datto Product, Datto grants you a limited, revocable, non-sublicenseable, non-transferable, non-exclusive right to install and use the Agent Software in its unaltered object code form on a Machine for the term of a valid Service Subscription for the Datto Product. This License grant does not include the right to use the Agent Software apart from a Datto Product, or in any manner that exceeds the number of Machines, type of Machines, or other imitations applicable to the Service Subscription for the Datto Product in connection with which the Agent Software is used.

Restrictions. You may not nor may you permit, facilitate or authorize any third party to: (i) use the Agent Software other than as permitted in this License; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in the Agent Software or its documentation; (iii) access or use the Agent Software in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt any Machine, the Datto Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from the Agent Software , except to the extent such a restrictions is expressly prohibited by Applicable Law; (v) copy, modify or create derivative works of the Agent Software; (vi) alter any disabling or tracking mechanism which may reside in the Agent Software; (vii) sell, assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Agent Software, or directly or indirectly permit any unauthorized third party to use or copy the Product; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Agent Software; or (ix) prevent any user from seeing and having to accept the terms of this License.

Machine ID. When you download and install the Agent Software we reserve the right, and you hereby authorize us, to automatically collect and use the Machine ID (which may include MAC address, NetBIOS ID or similar identifying information) to uniquely identify any Machine on which the Agent Software is used. We may use Machine ID to provide and support the Datto Product, to verify that the Agent Software is used in accordance with this License and the Product Terms of Use, and to provide updates to the Agent Software. You agree that you will not block the transmission of Machine ID information. We may also analyze Machine ID in an aggregate and anonymous manner, and compile statistical and performance information related thereto, consistent with the use of Aggregate Data set forth in the Product Terms of Use.

Updates. The Agent Software may check periodically for updates, upgrades or other modifications and download and install them automatically. By accepting this License, you agree to receive such updates without any additional notice.

Confidentiality. The Agent Software is the Confidential Information of Datto and is subject to all confidentiality obligations set forth in the Product Terms of Use. You acknowledge that any actual or threatened breach of the restrictions in this License may cause immediate and irreparable harm to Datto for which monetary damages would be inadequate and that injunctive relief would be appropriate.

DATTO WARRANTS THAT IT HAS THE RIGHT TO GRANT THIS LICENSE TO THE AGENT SOFTWARE AS SET FORTH HEREIN. OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGENT SOFTWARE IS PROVIDED “AS IS” AND WE DISCLAIM ALL OTHER 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, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE AGENT SOFTWARE WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT ITS OPERATION WILL BE SECURE, UNINTERRUPTED, TIMELY OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED.

THE USE OF THE AGENT SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, 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, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, ARISING OUT OF THE USE OR INABILITY TO USE THE AGENT SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR 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 OUR OBLIGATIONS HEREUNDER.

Term and Termination. The term of this License will begin at the earliest to occur of your agreement to this License, or the download or installation of the Agent Software, and will remain in effect throughout the term of the valid Service Subscription applicable to the Datto Product in connection with which it is used.

We reserve the right to terminate this License and your right to use the Agent Software if you breach the terms of this License or the Product Terms of Use. You may terminate this License at any time by providing written notice to us.

Upon termination, you agree to uninstall and/or destroy all copies of the Agent Software. All license restrictions, confidentiality obligations, disclaimers and limitations of liability will survive any termination or expiration of this License.

Evaluation. If the Agent Software is used in an evaluation or trial of any Datto Product, all terms of this License will apply for the purpose and term of such authorized evaluation or trial period only, and not for the term of a valid Service Subscription for the Datto Product. We reserve the right to terminate any such evaluation use of the Agent Software at any time in our sole discretion. All termination provisions of this License apply upon any termination of such evaluation use.

Governing Law. This License and any disputes arising from or relating to it shall be governed by the laws referenced in, and resolved in the manner set forth in, the Product Terms of Use. This License will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.

Enforceability. If any provision of this License is deemed illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this License will remain in full force and effect. Any waiver or failure to enforce any provision of this License will not constitute a waiver of future enforcement of that or any other provision.

Government Entities. The Agent Software is commercial in nature and is being provided only as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101).

Export Control. You may not export, directly or indirectly, the Agent Software to any country for which the United States or any other country of use requires any export license or other governmental approval without first obtaining such license or approval.

Definitions.

Machine - means a virtual or physical device, including desktop computers, laptops and servers, using an operating system that is compatible with the Agent Software.

Datto Product – means any product instance of a Datto image based backup and business continuity solution, regardless if it involves any hardware provided by Datto or if it is provided in virtual or imaged form.

Product Term of Use – means the terms and conditions applicable to the use of a Datto Product.

Intellectual Property Rights - means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights recognized in any country of jurisdiction in the world.