DATALOCKER END USER LICENSE AGREEMENT
Updated on: April 2020
FOR ENTERPRISE USERS ONLY: DataLocker Services may include, if purchased by Customer, DataLocker’s enterprise administrative electronic service that includes centralized management for deployment and security policy configuration of DataLocker Products, enables certain applications and functionality as selected by Customer and is hosted on DataLocker servers (the “Hosted Service”) and technical support services provided by DataLocker (the “Support Services”).
1. PRODUCT USAGE REQUIREMENTS
1.1 Use of DataLocker Product, Software and/or Services. You agree not to use the DataLocker Products, Software or Services to conduct any malicious activity or solicit the performance of any activity which is prohibited by law or any contractual provision by which you are bound. You agree to comply with all applicable laws, rules and regulations in connection with your use of the DataLocker Products, Software and/or Services. You shall not, nor shall you permit any party to: (i) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the DataLocker Products or Services or any Software incorporated therein; (ii) rent, lend, lease or distribute any DataLocker Product, Service or Software, or any portion thereof; or (iii) copy, alter, modify or adapt any DataLocker Product, Service or Software, or any portion thereof, except as expressly provided in Section 1.2 below.
For EMS On-Prem Users Only: DataLocker hereby grants You a limited, paid-up, perpetual (subject only to revocation as provided in this EULA), personal, non-exclusive, non-transferable, without the right to sublicense, worldwide license to use, install and operate the Software for data storage and security purposes, solely for the purpose of granting the right to access and use the Software to a certain number of licenses purchased. The foregoing licenses may not be transferred nor assigned. Except as expressly set forth herein with respect to Customers which are entities, no End-User nor any Customer may reproduce, distribute or modify, translate, adapt, arrange, or create derivative works based on the Software. Any rights not granted herein are specifically retained by DataLocker
For EMS On-Prem Users Only: Maintenance, Anti-Malware and Support Fees are not included in the Perpetual License Fees. You agree to pay the annual Maintenance, Anti-Malware (if applicable) and Support Fees and Other Fees separately and upfront, including, any period that has lapsed between the Initial Maintenance Period of a Subscription License, which is mandatory to You under such License. Any lapse in maintenance shall mean that your rights to the Perpetual License shall expire.
1.3 Equipment. You acknowledge that in addition to your purchase of the DataLocker, Software Products or Services, you are responsible for and must provide all computer hardware, Internet connection, telephone and other equipment, and operating system software necessary to access and use the DataLocker Products, Software and/or Services.
1.4 Protection of Security Data. Personal information, usernames, passwords and prompts (collectively “Security Data”) exchanged through the DataLocker Products, Services or Software are protected by advanced encryption techniques. However, these security measures still require your responsible behavior in protecting your Security Data. YOU SHALL ASSUME THE ENTIRE RESPONSIBILITY AT ALL TIMES FOR THE SUPERVISION, MANAGEMENT, CONTROL AND CONFIDENTIALITY OF YOUR SECURITY DATA AND ASSUME THE ENTIRE RISK FOR THE FRAUDULENT OR UNAUTHORIZED USE OF YOUR SECURITY DATA. YOU UNDERSTAND THAT FAILURE TO PROTECT YOUR SECURITY DATA MAY ALLOW AN UNAUTHORIZED PERSON OR ENTITY TO ACCESS YOUR DATALOCKER PRODUCT, SOFTWARE AND/OR SERVICE.
1.5 Notification of Others Upon Security Breach. If you believe an unauthorized disclosure of your Security Data has occurred, it is your responsibility to immediately notify each person and entity that is affected by such unauthorized disclosure.
SECTIONS 1.7 AND 1.8 ARE APPLICABLE TO INDIVIDUAL USERS ONLY:
1.7 DataLocker Product Fees. You shall pay all applicable license, maintenance or support fees of the Products or Service as set out in the, from time to time, applicable price list. Any failure to pay the applicable fees is a breach of this Agreement and DataLocker will be entitled to immediately terminate the License and this Agreement.
1.8 Activation Procedure. During the activation process, you will be given an opportunity to create passwords and password prompts that will give you access to the DataLocker Product, Software, Materials and related services. The passwords and prompts can be changed at a later time by following the instructions on the DataLocker website. In order to activate the DataLocker Product, you may need to provide a valid email address (your “Personal Information”), which can be used to identify you, contact you regarding your account, and for additional authentication. Upon providing DataLocker with the information required in the online activation process, confirmation of receipt of the activation will be sent to you via email. Only upon submission of such confirmation of your activation will your DataLocker Product be activated with DataLocker.
SECTION 1.9 IS APPLICABLE TO ENTERPRISE USERS ONLY:
1.9 Number of Users/Audit Rights. To the extent your use of the DataLocker Services or Software is on a per device basis, you will ensure that you do not exceed the number of devices you are permitted to have enabled to use the DataLocker Services or Software. Upon request, you will send to DataLocker an audit report, certified as accurate by an appropriate officer, reporting on the number of devices managed under the DataLocker Service or Software. DataLocker may also enable features in DataLocker Service or Software which allow DataLocker to generate a report on the number of devices managed under the DataLocker Service or Software. DataLocker, at its cost and expense, shall have the right, no more frequently than twice per calendar year, and upon ten (10) days prior written notice, to examine, or to have audit firm retained by DataLocker examine, your relevant systems, books and records during normal business hours and at a time reasonably agreed upon to verify the number of devices managed. Should any report or audit determine that the number of devices managed is more than the number permitted, you shall remit the amount necessary to pay for the additional devices, plus a fee of twenty-five percent (25%) of such amount. In addition, should the number of devices managed exceed the number permitted by ten percent (10%) or more, you shall also pay the costs of any audit.
2. TERM AND TERMINATION
SECTIONS 2.2 AND 2.3 ARE APPLICABLE TO ENTERPRISE USERS ONLY
2.2 Automatic Renewal; Termination of Services. Services provided in connection with the DataLocker Product shall automatically renew for successive one-year terms at DataLocker’s then current pricing unless you provide written notice to DataLocker at least thirty days prior to the end of the current term of Service and close your account for the DataLocker Service. Your notice should be sent via email to email@example.com, or in writing to DataLocker’s address at: 7300 College Blvd., Suite 600, Overland Park, KS 66210.
2.3 Reinstatement of Lapsed Services. If there is a lapse in Services for any period of time, any subsequent purchase of Services, which will be permitted at DataLocker’s sole discretion, will be deemed purchased retroactive to the date on which any prior Services concluded and you will be charged with an additional twenty percent (20%) reinstatement fee for the lapsed support period.
2.5 For EMS On-Prem Users Only: For clarity, a perpetual license is only valid if an annual maintenance contract is current between the two parties. DataLocker also reserves the right to terminate any perpetual license by giving at least a 24 month notice to You, which may occur via email, message on the admin login screen, or via our website.
3. NO WARRANTY, DISCLAIMER OF WARRANTY
3.1 DataLocker Products are not warranted to operate without failure. DataLocker Products should only be incorporated in systems designed with appropriate redundancy, fault tolerance or back-up features.
Accordingly, DataLocker does not recommend the use of DataLocker Products in life support systems or other applications where failure could cause injury or loss of life. Therefore if you decide to use DataLocker Products in connection with such applications you assume all risk of such use and agree to indemnify and hold harmless the DataLocker Indemnitees against any liabilities, claims, damages, costs and expenses (including reasonable attorneys’ fees) which arise from such use.
The product warranty is voided if Self Destruct, Silver Bullet, Remote Kill or Brute Force password protection or any other device disabling security protocols are initiated either intentionally or by accident.
Further details can be found at datalocker.com/warranty or contact us at returns@DataLocker.com.
For sales in Australia – Limited Warranty. If the DataLocker Product is purchased for use in Australia and if the Australian Consumer Law applies, then DataLocker offers a Limited Warranty against defects for the Warranty Period stated above. The DataLocker Product will be replaced or refunded at our option. DataLocker will not be liable for any loss of data or other special, incidental, consequential damages or any costs associated with determining the source of system problems. Further details can be found at datalocker.com/warranty or contact us at returns@DataLocker.com.
Your benefits under this warranty are in addition to your other rights and remedies under law in relation to this product. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3.2 LIMITATION OF DATALOCKER’S WARRANTY. EXCEPT AS EXPLICITLY SET FORTH ABOVE, THE DATALOCKER PRODUCTS, SOFTWARE AND/OR SERVICES ARE PROVIDED “AS-IS” AND DATALOCKER MAKES AND YOU RECEIVE NO WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE DATALOCKER PRODUCTS, SOFTWARE OR SERVICES. DATALOCKER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT, EXCEPT AS EXPLICITLY SET FORTH ABOVE, DATALOCKER DOES NOT WARRANT THAT THE DATALOCKER PRODUCTS, SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT OPERATION OF THE DATALOCKER PRODUCTS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DATALOCKER, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL CREATE ANY WARRANTY OF ANY KIND. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO ONE (1) YEAR FROM THE DATE OF PURCHASE OF THE APPLICABLE DATALOCKER PRODUCT OR SERVICE, AS THE CASE MAY BE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.
3.3 LIMITATION ON INTERNATIONAL USE. DATALOCKER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY CONTENT OR USE OF THE DATALOCKER PRODUCTS, SOFTWARE OR SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OUTSIDE OF THE UNITED STATES OR WHERE IT IS ILLEGAL OR PROHIBITED BY LAW OR BY DATALOCKER.
4. LIMITATION OF LIABILITY
4.2 NO LIABILITY FOR THIRD PARTY ACTIONS. EXCEPT WHERE APPLICABLE LAW REQUIRES A DIFFERENT RESULT, DATALOCKER WILL NOT BE LIABLE FOR ANY LOSS OR LIABILITY RESULTING IN WHOLE OR IN PART FROM ANY ACT OR FAILURE TO ACT OF YOUR EQUIPMENT OR SOFTWARE, OR THAT OF A BROWSER PROVIDER, BY AN INTERNET ACCESS PROVIDER, BY AN ONLINE SERVICE PROVIDER OR BY AN AGENT OR SUBCONTRACTOR OF ANY OF THEM, NOR WILL DATALOCKER OR DATALOCKER’S SERVICE PROVIDERS OR OTHER AGENTS BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, ECONOMIC OR OTHER DAMAGES ARISING IN ANY WAY OUT OF YOUR ACCESS TO OR USE OF, OR FAILURE TO OBTAIN ACCESS TO, THE DATALOCKER PRODUCTS, SOFTWARE OR SERVICES.
4.3 PERFORMANCE FAILURE. IN NO EVENT WILL DATALOCKER BE LIABLE FOR ANY FAILURE OF PERFORMANCE DUE TO CIRCUMSTANCES BEYOND DATALOCKER’S CONTROL (SUCH AS POWER OUTAGE, COMPUTER VIRUS, MALWARE, SPYWARE, KEY LOGGER APPLICATION, SYSTEM FAILURE, FIRE, FLOOD, EARTHQUAKE, TERRORISM, ACT OF WAR, OR EXTREME WEATHER).
4.4 APPLICATION OF LIMITATIONS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. YOU ACKNOWLEDGE THAT BUT FOR THE FOREGOING DISCLAIMERS, THE FEES CHARGED FOR THE DATALOCKER PRODUCTS AND SERVICES WOULD BE HIGHER.
4.5 DATALOCKER SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES IF CUSTOMER USES THE PRODUCTS PAST THE END OF LIFE (EOL) DATE, OR THE HARDWARE WARRANTY DATE FOR HARDWARE, INCLUDING BUT NOT LIMITED TO DEGRADATION OR INTERRUPTION OF THE PRODUCTS. THERE SHALL BE NO REFUNDS FOR PRODUCTS OR SERVICES PAST THE EOL DATE.
6. GENERAL PROVISIONS
6.1 Confidentiality. You agree not to reveal to any third party confidential information, which You obtain from DataLocker under this Agreement or which is incorporated in DataLocker Products, except (i) with the prior written consent from DataLocker; or (ii) to a court or government body having jurisdiction or as required by law, subject to making reasonable efforts to obtain an appropriate protective order to the extent possible and permissible under law.
6.5 NOTICES. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, IN THE EVENT THAT DATALOCKER IS REQUIRED TO PROVIDE A NOTICE OR OTHER COMMUNICATION TO YOU IN WRITING, THAT NOTICE OR OTHER COMMUNICATION MAY BE SENT TO YOU ELECTRONICALLY TO YOUR INTERNET ADDRESS AS REFLECTED IN DATALOCKER’S THEN CURRENT RECORDS.
6.6 Proprietary Rights. Other than your personal information and other data stored by you on the DataLocker Products, the DataLocker Products, Software, Services and all intellectual property rights contained therein and thereto are the property of DataLocker and/or third-party licensors of DataLocker. You may not rent, lend or lease any DataLocker Product, Software or Service, or any portion thereof. You may not copy, alter, modify or adapt any DataLocker Product, Software or Service or accompanying materials or reverse engineer, decompile, disassemble, modify or create derivative works from any DataLocker Product, Software or Service. The collection, arrangement, and assembly of all content on the DataLocker Products and Software is the exclusive property of DataLocker and/or its licensors and is protected by copyright or other intellectual property rights. The trademarks, logos, and DataLocker Products, Software and Services marks displayed on the DataLocker Products and Software and in connection with the DataLocker Services (collectively the “Trademarks”) are the registered and unregistered trademarks of DataLocker. Under no circumstances may you use copy, alter, modify, or change these Trademarks or any other proprietary markings on the DataLocker Products or Software. Nothing contained on the DataLocker Products or Software or in connection with the DataLocker Services should be construed as granting by implication or otherwise any license or right to use any intellectual property right of DataLocker without the express written permission of DataLocker.
6.8 Miscellaneous. Headings are for reference only and in no way define, limit, construe, or describe the scope or extent of such section. DataLocker’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
6.10 No Duty to Monitor. DataLocker does not have any duty to monitor the payments or other transactions that are made in connection with the DataLocker Products, Software or Services.
6.11 Government Licensee. The Government acknowledges DataLocker’s representation that the DataLocker Products and Software contain “Restricted Computer Software” as that term is defined in Clause 52.227 19 of the Federal Acquisition Regulations (FAR) and contain “Commercial Computer Software” as that term is defined in Subpart 227.471 of the Department of Defense Federal Acquisition Regulation Supplement (DFARS). The Government agrees that (i) if the Software is supplied to the Department of Defense (DoD), the Software is classified as “Commercial Computer Software” and the Government is acquiring only “restricted rights” in the Software and its documentation as that term is defined in Clause 252.227 7013(c)(1) of the DFARS, and (ii) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government’s rights in the Software and its documentation will be as defined in Clause 52.227 19(c)(2) of the FAR.
Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 7013. 6.11 Export Law Compliance. Regardless of any disclosure made to DataLocker of the ultimate destination of the DataLocker Products, Software or Service, you warrant that you will not export, directly or indirectly, any DataLocker Product, Software or Service without first obtaining the approval of DataLocker and the appropriate export license from the Department of Commerce or other agency of the United States Government.