Terms of Service
NASUNI DATA STORAGE SERVICES TERMS OF SERVICE AND LICENSE AGREEMENT
THIS TERMS OF SERVICE AND LICENSE AGREEMENT (“TERMS OF SERVICE”), TOGETHER WITH THE NASUNI PRIVACY POLICY, THE APPLICABLE PURCHASE ORDER (AS DEFINED BELOW), AND, IF APPLICABLE, THE NASUNI SERVICE LEVEL AGREEMENT, CONSTITUTES A BINDING AGREEMENT (“AGREEMENT”) BETWEEN NASUNI CORPORATION (“NASUNI”) AND YOU OR THE LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”). BY AGREEING TO A PURCHASE ORDER (AS DEFINED BELOW) YOU ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE LIMITATIONS ON LIABILITY SET FORTH HEREIN.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE AND YOU MUST IMMEDIATELY UNINSTALL THE SOFTWARE.
THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF YOUR USE OF ALL NASUNI DATA STORAGE SERVICES, INCLUDING THE ACCOMPANYING NASUNI SOFTWARE (“SOFTWARE”) AND THE RELATED USER MANUALS AND OTHER DOCUMENTATION (“DOCUMENTATION”). THE TERM “SERVICE” MEANS ALL NASUNI DATA STORAGE SERVICES TOGETHER WITH THE SOFTWARE AND DOCUMENTATION.
THE TERMS OF THE PURCHASE ORDER APPLICABLE TO THE SERVICE EXECUTED BY YOU AND NASUNI OR BY YOU AND AN AUTHORIZED NASUNI RESELLER (“RESELLER”) AND APPROVED BY NASUNI (EACH, A “PURCHASE ORDER”) SHALL APPLY TO YOUR USE OF THE SERVICE. THE TERMS OF ANY AGREEMENT BETWEEN YOU AND A RESELLER OTHER THAN A PURCHASE ORDER BETWEEN YOU AND A RESELLER THAT HAS BEEN APPROVED BY NASUNI SHALL NOT BIND NASUNI OR MODIFY OR OTHERWISE AFFECT ANY RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT.
Updated September 20, 2011
1. License.
(a) Grant. Subject to the terms and conditions of the Agreement, Nasuni grants to you a non-exclusive, non-transferable license during the Term (as defined in Section 9), without the right to sublicense, to (i) use the computer-executable object code of the Software solely for the purposes of accessing and using the Service; and (ii) use the Documentation in connection therewith.
(b) Ownership. You acknowledge that (i) all right, title and interest in and to the Service, including the Software and Documentation therein, and all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and shall remain with Nasuni or its third party licensors; (ii) no right or interest in the Service is conveyed other than a limited licenses granted herein; (iii) the Service is protected by the copyright and other intellectual property laws; and (iv) Nasuni asserts that the Service embodies valuable confidential and secret information of Nasuni, the development of which required the expenditure of considerable time and money.
(c) Copying. You may, at your own expense, make a reasonable number of copies of the Software and Documentation for archival and back-up purposes only; provided that you include on each such copy all copyright or other proprietary notices contained on such Software and Documentation.
(d) No Modification. You agree that you shall not (i) modify or alter the Software; (ii) create derivative works of the Software; (iii) decompile, disassemble, decode or reverse engineer the Software, translate the Software or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Software or reduce the Software by any other means to a human‑perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
(e) Certain Other Obligations. You agree that you (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Service or any components thereof; (ii) shall not alter or remove any copyright or other proprietary notices contained in the Service or any components thereof; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Service.
(f) Components. You shall not use any component contained in or provided with the Service separately from your use of the Service. Certain of the components are provided by third parties and are subject to additional licensing terms and restrictions (“Third Party Terms”). The Third Party Licensing Terms are set forth in the Documentation or are available at www.nasuni.com, and you agree to comply with all such terms.
(g) Additional Restrictions Applicable to Trial Periods. If you have a trial agreement, your right to use the Service shall terminate on the expiration date communicated to you by Nasuni or the applicable Reseller, which period will in no event exceed 60 days. Your use of the Software under a trial agreement may also be subject to such capacity limitations as Nasuni may impose.
2. Use of the Service.
(a) Communications. You are responsible for obtaining and maintaining all of the appliances, hardware, software and services that you may need to access and use the Service. Without limiting the foregoing, you must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access and use the Service.
(b) Passwords. You are responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user ID’s or other credentials and login information (collectively, “Passwords”) that have been provided to you or that are generated in connection with your use of the Service. You will not disclose or make available any Passwords other than to your authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Service. You are fully responsible for all activities that occur in connection with your Passwords. Without limiting the foregoing, you are responsible for all charges applicable to data and information transmitted to and stored under your account on the Service.
(c) Content. You warrant that you are the owner of or legal custodian of all programs, data, information and other content transmitted via the Software to the Service (the “Content”) and have the full authority to transmit and store the Content on the Service via the Software. You hereby authorize the storage on the Service of such Content as you elect to transmit via the Software. Nasuni has no ownership rights in content transmitted to and stored on the Service. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your Content on your equipment. You understand that the Service may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in you restoring files that are no longer usable. Without limiting the generality of Section 5, and except as expressly provided in the Service Level Agreement, Nasuni will have no liability to you for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of your Content.
(d) Encryption. The contents of your data files are encrypted before they are transmitted from your premises to the applicable Cloud Provider. Nasuni may have the ability to decrypt your data files; however, Nasuni will only decrypt your data files as necessary to provide support in accordance with the Support Policy (defined below) or if Nasuni determines that it must do so to comply with a law, regulation, subpoena, warrant, or order of a court or governmental agency.
(e) Suspension, Limitation or Termination. Nasuni shall be entitled, without liability to you, to suspend, terminate or limit your access to the Service at any time in the event (i) that Nasuni or such Cloud Provider determines that the Service is being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any agreement applicable to the Cloud Provider’s services; (ii) that Nasuni or such Cloud Provider determines that the Service is being used in an unauthorized or fraudulent manner; (iii) that such Cloud Provider determines that the use of the Service adversely affects such Cloud Provider’s equipment or service to others; (iv) Nasuni or such Cloud Provider is prohibited by an order of a court or other governmental agency from providing the Service; (v) of a denial of service attack or any other event which such Cloud Provider determines, in its sole discretion, may create a risk to the Service or to any other customers if the Service were not suspended; or (vi) of a security incident or other disaster that impacts the Service or the security of your Content or any other data stored with such Service. In addition, Nasuni shall have the right to deny or suspend access to the Software or Service in the event Nasuni is not paid any amount due in connection with the Service or you breach the Agreement. Without limiting the generality of Section 5, Nasuni shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of your right to use the Service in accordance with the Agreement.
(f) Prohibited Activities. You may not use the Service (i) in violation of this Agreement, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Purchase Order or on the Nasuni website; (ii) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (iv) to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. You may not use the Software or Service in any application that may involve risks of death, personal injury, property damage or environmental damage. You may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Service. You may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Nasuni by Cloud Providers. You may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on the Service by any other party. You may access the Service only through the interfaces and protocols provided or authorized by Nasuni. You may not access the Software or Service through unauthorized means, such as unlicensed software clients.
(g) Changes to the Service. Nasuni has the right to change, modify, update, add to, discontinue or retire the Service and any aspect or feature thereof, including but not limited to, the Cloud Providers, hours of availability, equipment needed for access or use, and the type of files that can be stored. Nasuni will provide notice of material change to the Software or Service by posting them at www.nasuni.com. It is your responsibility to check the Nasuni website periodically to inform yourself of any changes.
3. Personal Data. As used herein, the term “Personal Data” means any data or information that is identifiable to specific individuals. You acknowledge that the Service may be used to process information that may be regulated by privacy or data protection laws. Nasuni shall act only on your instructions in processing any Personal Data. You hereby instruct Nasuni to take such steps in the processing of Personal Data as are reasonably necessary to the performance of Nasuni’s obligations under this Agreement, and agree that such instructions constitute your full and complete instructions as to the means by which Personal Data shall be processed by Nasuni (and its Cloud Providers). To the extent that any privacy or data protection laws impose an obligation upon Nasuni to comply with an individual’s request for access to or correction of their Personal Data, you agree that you shall satisfy such obligations. Nasuni agrees that it shall forward any such individual requests that it receives to you and shall reasonably assist you, at your request and expense, to satisfy such obligations. You agree that it may be necessary for Nasuni to access your data to respond to your request for assistance with any technical problems and/or queries, and all such access will be logged by the Service. You shall hold Nasuni, its subcontractors, suppliers and licensors harmless from any and all data protection claims relating to such access. Nasuni agrees that it shall: (i) not use Personal Data except for the purposes of delivering the Services contemplated by this Agreement and in accordance with the terms of the Nasuni Privacy Policy; (ii) upon termination of this Agreement, remove Personal Data in accordance with your written instructions; (iii) implement security measures reasonably designed to safeguard Personal Data against unauthorized access, loss, destruction, damage or disclosure; and (iv) provide reasonable support to you in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws.
4. Limited Warranty.
(a) Software. Nasuni warrants solely to you that the Software, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation. Nasuni’s sole obligation and your exclusive remedy hereunder with respect to any failure to so function shall be to use reasonable efforts to correct any such failure. Nasuni shall have no obligation for any failure resulting from (i) the use or combination of Software with any other software or hardware not supported by Nasuni; (ii) causes external to the Software, such as problems with the hardware, network or other infrastructure with which the Software is used; (iii) unauthorized or improper use of the Software; or (iv) any modification of the Software by anyone other than Nasuni.
(b) Service. If applicable, refer to the Nasuni Service Level Agreement; Nasuni makes no other warranty whatsoever with respect to the Service.
(c) Disclaimer. NASUNI HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, Nasuni does not warrant that the Software or Service will meet your requirements or operate without interruption or be error free.
5. Limitation of Liability.
(a) IN NO EVENT WILL NASUNI, ANY OF ITS LICENSORS OR RESELLERS, OR ANY CLOUD PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES (EVEN IF NASUNI HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME).
(b) YOU AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF NASUNI, ITS LICENSORS, RESELLERS AND CLOUD PROVIDERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL FEES PAID BY YOU FOR THE SERVICE FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
(c) You may not bring any suit or action against Nasuni for any reason whatsoever more than one year after the cause of action accrued.
6. Support. Nasuni or an authorized Nasuni reseller will provide customer support to you in accordance with Nasuni’s standard support policy which is in effect from time to time and posted at www.nasuni.com (“Support Policy”). Nasuni reserves the right to change its Support Policy, or to discontinue providing support, at any time, by posting such changes at www.nasuni.com. In providing support, Nasuni or a Nasuni reseller or agent may use a variety of tools to aid in the process of resolving your issues as a user and may request that you provide additional information in order to resolve these issues. You hereby grant Nasuni and such reseller the right to use those tools and any information you provide to Nasuni in order to provide you with support.
7. Intellectual Property Infringement.
(a) By Nasuni. Except as set forth below, Nasuni will defend at its expense any action brought against you to the extent that it is based on a claim that the Software, when properly used within the scope of this Agreement, infringes a United States patent, copyright or trade secret of any third party and Nasuni will pay any costs, damages and reasonable attorneys’ fees finally awarded against you in such action which are attributable to such claim; provided that (i) Nasuni is notified in writing promptly of the claim; (ii) you permit Nasuni to assume sole control of the defense, compromise or settlement of said claim; and (iii) you provide to Nasuni reasonable cooperation, information and assistance in connection therewith. If a final injunction is obtained against your use of the Software by reason of infringement or if in Nasuni’s opinion the Software is likely to become the subject of a successful claim of such infringement, Nasuni may, at its option, either procure for you the right to continue using the Software or replace or modify the same so that it becomes non-infringing (so long as the functionality is essentially unchanged). In the event that neither of the foregoing is reasonably available, Nasuni may require you to cease the use of the Software.
(b) By You. Nasuni shall have no liability to you, and you shall, on terms comparable to those set forth in Section 7(a), defend and indemnify Nasuni against, claims of infringement based on (i) the use or combination of Software with any other software or hardware not supported by Nasuni, if such infringement would not have occurred but for such use or combination; (ii) any modification of the Software by anyone other than Nasuni; or (iii) the use of other than the current version of Software, if such version was made available by Nasuni with notice that such version was being provided in order to avoid an alleged or potential infringement.
(c) This Section 7 states the entire liability of Nasuni with respect to infringement or alleged infringement of any patent, copyright, trade secret or other proprietary right.
8. Indemnification. You agree to indemnify Nasuni with respect to any losses, damages and expenses incurred by Nasuni resulting from any breach by you of any representation, warranty or obligation under this Agreement.
9. Term and Termination.
(a) Term. Subject to Nasuni’s receipt of all applicable fees, and unless otherwise terminated in accordance with this Section 9, this Agreement shall commence upon your acceptance of the Agreement and shall continue in effect for the period specified on the applicable Purchase Order (the “Term”).
(b) Termination By You. You shall have the right to terminate this Agreement at any time by discontinuing use of the Software and sending a written notice to Nasuni stating your desire to terminate the Agreement; provided, however, that you shall not in any event be entitled to any refund of any fees previously paid to Nasuni or the applicable Reseller.
(c) Termination by Nasuni. Nasuni shall have the right to terminate this Agreement at any time upon notice to you in the event that you breach any of your obligations under this Agreement and such breach is not cured within fifteen (15) days after notice thereof. Without limiting the foregoing, Nasuni may terminate this Agreement if your use of the Service exceeds the storage volume limits specified on the applicable Purchase Order and you do not purchase additional storage volume within ten (10) days after you receive notice regarding such excess usage.
(d) Consequences of Termination. Upon termination of this Agreement for any reason, you shall cease to use the Software and Documentation, shall return to Nasuni or destroy all copies of the Software and Documentation, shall erase all copies which are stored in computer memory or hard disk or other similar forms or media, and shall, within ten days of such termination, furnish written notice to Nasuni that all such copies have been returned or destroyed.
(e) Content Preservation, Retrieval or Transfer. In the event of a temporary suspension of your access to Services, (i) Nasuni will not take any action to intentionally erase or delete your Content stored on the Service; and (ii) applicable fees will continue to accrue. In the event of the termination of this Agreement you may, upon reasonable notice to Nasuni, elect to retrieve your Content directly. If this Agreement is terminated for any reason other than your breach, Nasuni will not take any action to intentionally erase or delete your Content stored on the Service for a period of thirty (30) days. If this Agreement is terminated on account of your breach of this Agreement, Nasuni will not take any action to intentionally erase or delete your Content stored on the Service for a period of fifteen (15) days. In each case, your post-termination retrieval or transfer of Content will be conditioned on Nasuni’s receipt of all applicable fees for the period following termination, payment in full of any other amounts owed, and your compliance with such reasonable terms and conditions as Nasuni may establish with respect to such retrieval or transfer. In addition, if you utilize the professional services of Nasuni to assist you in connection with such retrieval or transfer, you will be responsible for Nasuni’s then current charges for such professional services. In the event that Nasuni does not receive all such fees and amounts within the thirty (30) day or fifteen (15) day periods described above, or in the event that you fail to notify Nasuni of your election with respect to your Content within such period, Nasuni shall have no obligation to continue to store your Content or permit you to retrieve or transfer the same.
(f) Survival. The following shall survive the termination of this Agreement: (i) all liabilities accrued under this Agreement prior to the effective date of termination; and (ii) all provisions of Sections 1(b), 4(c), 5, 7, 8, 9 and 10 of this Agreement. Subject to the provisions of Section 5 hereof, the rights provided in this Section 9 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of this Agreement by the other party.
10. Miscellaneous.
(a) Entire Agreement. This Agreement sets forth the complete understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and communications relating thereto. No term or condition of any other document provided to Nasuni which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Nasuni. In the event of a conflict between the Terms of Service, the Nasuni Privacy Policy, or the Nasuni Service Level Agreement and a Purchase Order, the terms of such documents shall prevail to the extent of such conflict unless such Purchase Order expressly states that a term thereon is intended to prevail over the terms of such documents.
(b) Modification; Waiver. Nasuni shall have the right to amend the terms and conditions of this Agreement at any time, effective upon posting of an updated version of this Agreement at www.nasuni.com. Nasuni shall use reasonable efforts to provide you with notice of changes to this Agreement, but you are responsible for regularly checking the Nasuni website to inform yourself of such changes. Continued use of the Software or Service after any such changes are posted shall constitute your consent to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts as if made in and performed entirely within Massachusetts. The parties expressly reject any application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this Agreement or the Software or Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Massachusetts, and you hereby consent to the jurisdiction of such courts.
(d) Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform.
(e) Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. Either party may assign or otherwise transfer this Agreement or its rights and duties hereunder to a successor of all or substantially all of its assets or business that relate to the Agreement.
(f) Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remainder hereof shall remain in full force and effect.
(g) Notices. Except as otherwise provided, notices under this Agreement shall be delivered by email addressed to the other party at such address as is set forth in the applicable order or such other email address as you may provide from time to Nasuni by modifying your user profile at www.nasuni.com.
(h) Canadian Users. The parties confirm that it is their desire that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s’y rattachent, soient rédigés en langue anglaise.
(i) Compliance With Laws. You agree to comply at all times with all laws, rules and regulations applicable to your use of the Service.
(j) Headings. The headings of the sections of this Agreement are for convenience of reference only and shall not be considered in construing this Agreement.