Updated as of April 1, 2023
1. USE OF PRODUCTS
b. SaaS Accounts and Licenses. Each Product account (a “SaaS Account”) backs up data (with respect to SaaS Protection) or protects data (with respect to SaaS Defense) of individual users associated with an existing domain account (each a “User” and a “Domain,” respectively). Product licenses are required for all protected users allocated to a SaaS Account regardless of status (e.g., active, paused, archived) or other specified seat usage in accordance with the Product Specifications, provided however that for SaaS Defense, licenses are not required for users with an archived status. All SaaS Protection licenses and SaaS Defense licenses allocated to the same Domain must have the same Service Term.
c. Account Registration/Set up. You are required to set up each SaaS Account in accordance with the Product Specifications. During set up, you agree to provide accurate and complete information, and you further agree to promptly update this information should it change. Each user that is designated for backup or defense upon account set up will automatically provision a SaaS Protection or SaaS Defense license, as applicable, or use an available license that has already been purchased. All Users added to a SaaS Account after initial account registration by any Administrator of the SaaS Account, either manually or through any enabled automatic add features, will automatically provision an additional license or use an available license that has already been purchased. You acknowledge that you are responsible for any features you enable for each SaaS Account, either at set up or at any time thereafter, including but not limited to, automatic add and license cap features.
d. Backup Process. The term “Backedup Site” means a third party website or web-based application or service (such as, for example, Microsoft O365 or Google Workplace) with which the Products interact to obtain copies of Content that exists on the Backedup Site. Datto will undertake commercially reasonable efforts to save a copy of the Content that you have designated for use and backup by the Backupify Product to a server operated by Datto. In accordance with the Order and Documentation, Datto will automatically poll the API of a Backedup Site for changes or additions to the Content and periodically re-save a copy of a modified file or create a copy of a newly designated file. You, on behalf of Users and for yourself, hereby authorize Datto to access and interact with the Backedup Sites so Datto can retrieve and store copies of the Content. Backupify will store the unique authorization code provided to Datto by the Backedup Site (a “Token”) to access such site on your behalf or a User’s behalf.
f. Rights and Responsibilities Regarding Content and Product Use.
II. You must maintain authorization and access to the Domain(s) and Backedup Sites so that we are regularly able to access it for purposes of providing the Product. You agree and acknowledge that Content may not be available or restorable a) if our access authority to a Domain or Backedup Site is changed or otherwise restricted; b) due to unavailability of the Domain or Backedup Site, or any portion thereof; c) if the Domain provider amends its API guidelines in such a way that affects our ability to access the Domain to provide the Product; and/or d) with respect to modifications to the Content that are not captured in the backup frequency or retention schedule for the Service Plan chosen.
III. Third Party Administrator Responsibilities Regarding Content and Product Use. If you are a third party Administrator managing or using the Product on behalf of another entity, such as a client (a “Client”), you represent and warrant that you are acting as an agent on behalf of the Client and that you are acting within the scope of your agency. Accordingly, you agree to obtain the Client’s authorization and comply with Client’s instructions at all times with respect to use of the Product and access to Content, including but not limited to: Service Subscription, backup settings, access controls, management, retention and deletion of Content, transition of a SaaS Account or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an Administrator, Client and/or Datto. Datto expressly may rely on the authorization of any Administrator with respect to access and control of a SaaS Account or Content.
V. Datto’s Use of Malicious Code. If you have a Service Subscription for SaaS Defense, Datto will scan Content (including emails and drives) to identify and defend against Malicious Code. Further, Datto will compile and provide threat information regarding Malicious Code (“Threat Information”). Datto may retain a copy of the Malicious Code and use information about the Malicious Code for any purpose, including, but not limited to, the improvement of its Products, research and analysis, and cooperation with others regarding Malicious Code.
VI. Client Terms for Managed Accounts. If you resell a Product to a Client, act as a Product Administrator for a Client or if you authorize a Client to directly use or support a Product, you must ensure that the Client agrees to the Datto Saas Protection and SaaS Defense Client Terms in substantially the form attached as Exhibit A hereto as part of a valid, enforceable contract between you and the Client.
2. SERVICE SUBSCRIPTIONS
a. Service Subscription Required. All Product licenses must be included in a valid Service Subscription for which we receive timely payment. A Service Subscription includes a group of licenses that have the same Term Length and Service Plan. A Service Subscription is either a License Pool Service Subscription or a SaaS Account Service Subscription, each as defined below.
I. License Pool Service Subscription. Except for licenses specifically designated in the ordering process for an individual SaaS Account, the Service Subscriptions for Product licenses are consolidated for billing purposes into license pools. A license pool includes all Product licenses in SaaS Accounts under your Datto portal account (other than those designated for an individual SaaS Account) that have the same Term Length and Service Plan. For clarity, there is no requirement that a SaaS Defense license be purchased for every Domain. Therefore, the license count for SaaS Protection licenses used for backup purposes may be different from the license count for SaaS Defense licenses, even within the same type of license pool.
II. SaaS Account Service Subscription. All licenses in a Service Subscription for an individual SaaS Account may be used for that Service Subscription only.
b. Service Plan. Each SaaS Protection Service Subscription requires a particular Service Plan regarding the retention of backups. All Service Plans include licenses to the technology needed to perform backup functions and access to Datto Technical Support. The retention applicable to each Service Plan determines how and for how long Content associated with a SaaS Protection Account is retained. In general, Content associated with SaaS Protection Accounts enrolled in any SaaS Protection Service Plan will be retained, as specified in the applicable Service Plan, for as long as the SaaS Protection Account has appropriate licenses provisioned to it under an active SaaS Protection Service Subscription for which payments are current.
c. Saas Defense Retention. With respect to SaaS Defense, the retention period of Threat Information is set by Datto, and shorter than the retention period of backed up data under a SaaS Protection Service Plan. Please consult the current SaaS Defense product documentation for the current retention period for Threat Information.
d. SaaS Protection Service Plans:
I. Time Based Retention Service Plan. In this Service Plan, incremental data backups are maintained for one year on a rolling basis, with the oldest incremental backups deleted first after one year. Automatic consolidation of incremental backup recovery points is applied on a rolling basis:
• 3x daily backups are retained for 30 days
• Daily backups are kept after 30 days
• Weekly backups are kept after 90 days, then stored rolling for up to 1 year
II. Infinite Cloud Retention Service Plan. In this Service Plan, incremental backups are retained for an indefinite period of time. Automatic consolidation of incremental backup recovery points is applied on a rolling basis:
• 3X daily backups are retained for 30 days
• Daily backups are kept after 30 days
• Weekly backups are kept after 90 days
• Monthly backups are kept after a year, then stored for selected retention period.
III. Limitations on Storage. Unless otherwise specified, SaaS Protection Service Plans and SaaS Accounts are not limited to a pre-defined amount of Datto Cloud storage. However, all access and use of all Datto SaaS Protection Service Plans and SaaS Accounts are subject to Fair Use policies that prohibit use that:
• Results in excessive bandwidth or storage;
• Harms Datto services, networks or other resources; and/or
• Circumvents the intended use of the Product.
e. Term Length. The term of a Product Service Subscription is for a defined number of consecutive months (a Committed Service Term). A Service Subscription shall commence on the date the first Product license in the Service Subscription is provisioned for a SaaS Account or the date on which an Order placed with a Datto account executive is accepted. A Service Subscription always ends on the last day of a calendar month. For invoicing and renewal purposes, a Committed Service Term will commence on the first of the month following the start of the Service Subscription and will remain in effect for the defined number of consecutive months.
f. Committed Service Term High Watermark. If licenses in a Service Subscription are purchased for a Committed Service Term, that Committed Service Term will apply for the initial license(s) and for any additional licenses added to the same Service Subscription. The number of licenses, including licenses added after the initial licenses in a Service Subscription, may not be decreased from the high watermark and are committed for the remainder of the then-current Committed Service Term so that all licenses in the Service Subscription terminate on the same date. We reserve the right to monitor usage and retroactively invoice for use and high-water marks that were not reflected on invoices covering months of actual use.
g. Renewals. Unless timely cancelled by you as described herein, the term of any Service Subscription licenses will automatically renew for the same term (Committed Service Term) for the number of licenses as of the “license count date” immediately preceding the renewal date. The license count date shall be the date on which Datto measures the number of licenses in each Service Subscription. This date will be the same each month but is subject to change at Datto’s sole discretion.
h. Cancellations/Adjustments. Provided you give at least thirty (30) days’ written notice prior to the end of a Committed Service Term, you may cancel automatic renewal of the Committed Service Term, or you may adjust the number of licenses upon renewal.
i. Service Subscription Conversion. If licenses provisioned to a SaaS Account are part of a License Pool Service Subscription with a Monthly Term, the SaaS Account can be converted to any other License Pool Service Subscription. The licenses attributed to that SaaS Account prior to conversion will be deprovisioned from the previous License Pool Service Subscription. Licenses attributed to the SaaS Account after conversion will be provisioned as new or available licenses from the new License Pool Service Subscription. If licenses provisioned to a SaaS Account are part of a License Pool Service Subscription with a Committed Service Term, the SaaS Account can be converted only to another License Pool Service Subscription with a Committed Service Term of at least the same duration. The licenses attributed to that SaaS Account prior to conversion will remain in the previous License Pool Service Subscription, but may be provisioned to another SaaS Account. Licenses attributed to the SaaS Account after conversion will be provisioned as new or available licenses from the new License Pool Service Subscription. Service Plan conversions may involve different retention of Content or involve deletion of data backups and you are responsible for and must understand the consequences of any conversion involving a different Service Plan.
j. SaaS Account Termination. For up to sixty (60) days after the effective date of termination of a SaaS account, we will, upon written request, allow you to export or download a copy of Content as provided in the Product Specifications. After such period, we have no obligation to maintain or provide any Content and may thereafter delete or destroy all copies of the Content, unless legally prohibited. Threat Information may be deleted immediately upon termination of a SaaS Defense account. Depending on the Service Subscription, licenses applicable to the SaaS Account may remain.
k. License Invoicing and Financial Terms.
I. An Order for a license is generated when you provision a new license for a SaaS Account. An Order for one or more licenses may also be placed with your Datto sales executive.
II. Service Subscription fees are invoiced in advance monthly commencing on the first monthly invoice following the provision of the first license in the Service Subscription or acceptance of an Order placed with a sales executive. Monthly Service Subscription fees are based on the total number of licenses in each Service Subscription as of the license count date from the previous month.
III. Monthly payments for each Service Subscription are due upon receipt each month and will be charged to the applicable payment method indicated in your Datto Portal account.
IV. You agree to pay monthly Service Subscription fees for the entire Committed Service Term. Unless otherwise agreed, you may not prepay for a Service Subscription. If you terminate your Service Subscription at any time during a Committed Service Term, a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee for the number of licenses in a Service Subscription as of termination times the number of months remaining in the Committed Service Term) will be due immediately and charged to your preferred payment method.
V. Datto may terminate any Service Subscription at its discretion, effective immediately, for non-payment that is not substantially cured within thirty (30) days after receiving written notice.
l. License Pool Service Subscription Fees. The monthly Service Subscription fee is charged for each SaaS Protection license and is based on the total number of SaaS Protection licenses in each license pool in your overall Datto portal account as of license count date. The monthly Service fee is the product of the total number of licenses in each license pool multiplied by the associated per license fee in the appropriate price tier for that license pool.
3. ACCESS AND SECURITY
a. Your Responsibility for SaaS Account Access. You are responsible for any action that you permit, assist or facilitate to be taken through your SaaS Account and associated Content. You are responsible for the security of all access credentials, including all passwords, to all SaaS Accounts you manage. You are responsible for maintaining the security of any access codes, passwords, technical specifications, connectivity standards or protocols, assigned to you and/or created by you to gain access to the Product and/or Content. You are responsible for all activities that occur in your Datto Portal account including any Product or Content access you allow, regardless of whether the activities are undertaken by you, by others on your behalf (including any of your administrative users and/or any Client you authorize). Your Product management portal account may be hosted in the U.S. regardless of where you, the SaaS Accounts or Content related to them may be located. You are responsible for securing any necessary consents related to the hosting location of your Online Portal account. You agree to notify us immediately if you learn of any unauthorized use of any access credentials or any other known or suspected breach of security. You agree that we will not be liable for any loss of any kind resulting from a) any entity using your Account access credentials; and b) activity within your Account, either with or without your knowledge or authorization.
b. Your Responsibility for Security. You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to access to and use of the Product and Content. In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to network connectivity and internet connectivity. We use physical, technical and administrative safeguards designed to secure Content under our control against accidental or unauthorized 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 measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities and you use the Products with all Content at your own risk.
SaaS Protection and SaaS Defense Client Terms
These Client Terms ("Terms"), apply to you as the entity that owns, licenses, or lawfully controls the content (“Content”) in a Datto SaaS Protection or Datto SaaS Defense product account (“Product”). Datto does not provide the Product directly to you. The Product is sold and provided by Datto, Inc. or one of its subsidiaries or affiliates (“Datto”) directly to the reseller/managed service provider (“Administrator”) who will (a) use and manage the Product on your behalf with your Content; or who may (b) authorize you to access, use or manage the Product yourself, in which case you will be considered Client Administrator of the Product.
RIGHTS TO THE PRODUCT
You acknowledge that Datto and its licensors own all intellectual property rights in and to the Product. You will not engage in or authorize any activity that is inconsistent with such ownership.
Datto’s Use of Content. Datto will use Content only as necessary to provide and support the Product and will not otherwise access Content other than as permitted herein, as described in the Product Specifications or as authorized by an Administrator for support.
Datto’s Rights. In the event that Datto reasonably believes Content or related Product use violates these terms, including any Fair Use policies in the Product Specifications, may disrupt or threaten the operation or security of any computer, network, system or the Product, or may otherwise subject Datto to liability, Datto reserves the right to refuse or disable access to the Product or Content. Datto may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request. Datto will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Datto may restrict access to any Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Datto takes any such action without prior notice, Datto will provide notice to the Administrator, unless prohibited by law.
Use of Aggregate Data. Notwithstanding anything else in these Terms or otherwise, Datto may evaluate and process use of the Product and Content in an aggregate and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Aggregate Data includes utilization statistics, reports, and logs aggregated with data from other Datto customers. Datto may use, process and share such Aggregate Data with third parties to improve the Products, develop new products, 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 nor identify any Client or individual.
Datto SaaS Defense. Through SaaS Defense, Datto will scan Content (including emails and drives) to identify and defend against spam, viruses, malware and other malicious content (“Malicious Code”). Datto will compile and provide threat information regarding Malicious Code (“Threat Information”). Datto may retain a copy of the Malicious Code and use information about the Malicious Code for any purpose, including, but not limited to, the improvement of its Products, research and analysis, and cooperation with others regarding Malicious Code.
Right to Change Products. Datto may make changes to its Products through updates and upgrades that offer new features, functionality, and efficiencies ("Enhancements"). Datto reserves the right to add new Products and Enhancements and to replace or discontinue Products or Enhancements at any time.
Right to Interact with Products. You agree that Datto may and you hereby authorize Datto to interact remotely with any deployed Product in order to test, troubleshoot, update, analyze use of or modify the Product or the environment in which it operates.
Datto will interact with the Administrator(s) you appoint to operate and manage use of the Product with your Content. 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 any representations or warranties on behalf of Datto regarding the Product or its use. You are responsible for instructing and authorizing the Administrator with respect to use of the Product including backup settings, management, retention and deletion of Content, and transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, you and/or Datto. You expressly agree that Datto may rely on the instructions and authorization of the Administrator with respect to use and support of the Product and access and control of your Content.
YOUR DIRECT USE OF A PRODUCT
If the Administrator authorizes you to access or use a Product directly, you are responsible for all actions you take with respect to use of the Product including backup settings and management, retention and deletion of Content and Datto may rely on your instructions as an authorized administrator of the Product. Any support for the Product is provided to you by the Administrator and not directly by Datto.
Datto has implemented and maintains physical, technical and administrative measures designed to help secure Content 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, the Products and Content are not guaranteed against all security threats or other vulnerabilities.
You acknowledge and agree that the Administrator you authorize to manage use of the Product on your behalf has access to and manages your Content. You and/or the Administrator are responsible, and in no event will Datto be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of Datto, including but not limited to , passwords or other access credentials, LAN or internet connectivity. You and/or the Administrator are responsible for the proper configuration and maintenance of security measures and for determining the security measures appropriate for the Content
LIMITATIONS OF LIABILITY
THE DATTO PRODUCT, 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, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. DATTO DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
DATTO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.
THE PRODUCT 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.
DATTO DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF DATTO.
TO THE FULLEST EXTENT ALLOWED BY LAW, 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, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.